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(Charlotte Observer)   Scalia hints that he may regret the impending outcome about to result from his (alleged) vote for certiorari in the Perry and Windsor cases   (charlotteobserver.com) divider line 209
    More: Interesting, Scalia, perry, North Carolina, Supreme Court Justice Antonin Scalia, originalist, moralists, same-sex marriages, Defense of Marriage Act  
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3708 clicks; posted to Politics » on 24 Jun 2013 at 10:00 AM (42 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-06-24 01:39:00 AM
So, no Gay marriage.

/Scalia for the lose.
 
2013-06-24 02:05:58 AM
I have to agree with his argument.  Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.  The Supreme Court has one job.  To render an opinion based on how the Constitution applies to a specific case.

The court could say that it is up to the States since the Federal government has no authority, though it's been a long time since that idea has been used (even if it is still the law).  This would result in some very messy problems between states.  Would an anti-gay state be required to recognize a pro-gay state sanctioned marriage?  How about gays jointly filing for income taxes if they are in a gay marriage state?  I think it unlikely this will be kicked back to "let the states decide" because of this, but I wouldn't rule it out entirely.

And just so there is no confusion.  I hope they rule in favor of gay marriage.  Those overly happy, smug little bastards need to suffer the pain of marriage just like us straight people.
 
2013-06-24 03:14:57 AM
I hope they do indeed rule in favor of gay marriage.

I am also more of an originalist, so I do have some problems with negotiating my beliefs of gay marriage and current laws. I am hopeful that we could get a constitutional amendment allowing for gay marriage so rulings like this wouldnt be necessary and it would help end constitutional issues with homosexuality and the law.  Unfortunately I doubt that is possible leaving the courts the last hope of a positive outcome.
 
2013-06-24 03:19:33 AM

OgreMagi: The court could say that it is up to the States since the Federal government has no authority, though it's been a long time since that idea has been used (even if it is still the law).


That, however, would seem likely to yield a "victory" for the pro-Gay supporters in the Windsor case at least; and "no authority" seems pretty hard to justify in the Perry case, given an appeal with an equal protection component.

"Insufficent" might work, legally (though seeming not explaining Scalia's seeming griping). Contrariwise, it may be that damage control, containment, and delay are about as much anti-Gays can realistically aspire to.

OgreMagi: Would an anti-gay state be required to recognize a pro-gay state sanctioned marriage?


There would almost certainly be further cases to address the so-called "public policy" exceptions -- gays seeming the most prominently impending example, but in theory a pair of hetero cousins who marry in New Mexico can be prosecuted if they move to Oklahoma.
 
2013-06-24 08:40:11 AM
So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?
 
2013-06-24 08:42:57 AM

OgreMagi: I have to agree with his argument.  Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.  The Supreme Court has one job.  To render an opinion based on how the Constitution applies to a specific case.


Rendering an opinion "based on how the Constitution applies" is by no means an easy decision, and by necessity requires a Justice to interpret the Constitution based on his or her personal beliefs. If you want clear guidance on rules, the Constitution is a deeply flawed document. To give one simple example, take the ban on "Cruel and Unusual Punishment." What does that mean? What is cruel? Do we use the definition of cruel from 1789 when the Constitution was written? If that's the case, then hangings and beatings and public flogging are all completely kosher under the Constitution. How about unusual? If we use the definition from 1789, then we have to go back and try to figure out what the various rates of different punishments were and figure out which one is strange. And what about the "and"? Scalia has written, and the current law is, that because the Constitution says "Cruel  and unusual" punishment, cruel punishment is okay so long as it's unusual, and unusual punishment is okay so long as it's not cruel. This means that it's perfectly okay to sentence someone to life in prison for three shoplifting offenses, because according to Scalia, it's cruel, but it ain't unusual.

This is why the simplistic view of "Oh, just decide based on the Constitution" ignores the fact thatthe  vast majority of what the Supreme Court does is interpret past precedent about how to interpret the Constitution. And sometimes they disagree on what that precedent means, or whether that precedent was wrongly decided in the past, etc... There are  hundreds of thousands of pages of law written on how to interpret the clause "abridging the freedom of speech," because the text of the Bill of Rights doesn't define "abridging", "freedom" or "speech." And right there is the key part of the argument between Originalism and Living Constitutionalism. A textual originalist would say "Let's look towards what the Founders believed freedom, speech, and abridging means." An original intent believer would say "Look's look towards  why the Founders wrote those words, and what their intent was." A living constitutionalist would say "Let's look towards the modern definition of freedom, speech, and abridging, and see what they mean in a modern context." But most justices are a blend of the three (and other philosophies). After all, trying to decide what the Founders would have thought of GPS technology or phone metadata is an exercise in absurdity, but people still do it.

The Cruel and Unusual Punishment clause is a perfect example of a clause where judges  must use their morality; cruelty is not a "defined" thing, and the Constitution was written in such a way as to  demand that judges use their morality, and for Scalia and other conservatives to shrug and say "Ehh, no morality ever" is to put their blinders on.

The court could say that it is up to the States since the Federal government has no authority, though it's been a long time since that idea has been used (even if it is still the law).  This would result in some very messy problems between states.  Would an anti-gay state be required to recognize a pro-gay state sanctioned marriage?  How about gays jointly filing for income taxes if they are in a gay marriage state?  I think it unlikely this will be kicked back to "let the states decide" because of this, but I wouldn't rule it out entirely.

I think they're going to rule DOMA dead, which means the federal government must recognize gays married at the state level, and they're going to limit the Prop 8 decision to California alone by declaring that you can't grant gay marriage and then take it away again (see Romer)

And just so there is no confusion.  I hope they rule in favor of gay marriage.  Those overly happy, smug little bastards need to suffer the pain of marriage just like us straight people.

Hah!
 
2013-06-24 08:54:30 AM

Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?


Good question.

I would love to know that, too.

I doubt it will get to the "shooting war" level, but you never know.
 
2013-06-24 08:56:09 AM
How about if we treat everyone equally under the law?  I would settle for that.
 
2013-06-24 08:59:18 AM

cman: Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?

Good question.

I would love to know that, too.

I doubt it will get to the "shooting war" level, but you never know.


It would be another very high profile loss for their ideology. I'm not sure how the evangelical community would handle seeing gays get married or being considered regular, normal citizens. Add in the election losses, the creeping legalization of cannabis and loss of influence among most everyone under the age of 60 and it does not bode well for the future of evangelical influence in the nation.
 
2013-06-24 09:00:07 AM
The two cases currently before the Supreme Court isn't about the judges acting as arbiters of morality. Rather, the cases are asking judges to decide on issues of fairness, which is something that the law has historically been asked to do.

Back in the old days (we're talking pre-US English common law days), the courts of law and the courts of equity are separate. The courts of law decides on issues of the law, but where the outcome will be unfair, petitioners can petition the courts of equity, which decides in the interest of fairness.

In the US, the courts of law and courts of equity are combined in most states and the federal courts. So, historically, our judges have always had the duty and power to decide on matters of what is fair and what is not.
 
2013-06-24 09:01:26 AM

Marcus Aurelius: How about if we treat everyone equally under the law?  I would settle for that.


If we started treating bankers the same. Way we treat ghetto drug dealers and white trash meth users....wall street would implode. Throw them in jail?! They have MONEY dammit!
 
2013-06-24 09:02:34 AM
Scalia never seemed to have a problem with being a moral arbiter in previous cases regarding "moral" issues.

Looks like he sees the winds changing and is upset about it.
 
2013-06-24 09:02:40 AM

Marcus Aurelius: How about if we treat everyone equally under the law?  I would settle for that.


Nah, that would be too sensible.
 
2013-06-24 09:04:41 AM

Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?


They'll double down on the God-derp, as usual.
 
2013-06-24 09:05:41 AM

RexTalionis: The two cases currently before the Supreme Court isn't about the judges acting as arbiters of morality. Rather, the cases are asking judges to decide on issues of fairness, which is something that the law has historically been asked to do.

Back in the old days (we're talking pre-US English common law days), the courts of law and the courts of equity are separate. The courts of law decides on issues of the law, but where the outcome will be unfair, petitioners can petition the courts of equity, which decides in the interest of fairness.

In the US, the courts of law and courts of equity are combined in most states and the federal courts. So, historically, our judges have always had the duty and power to decide on matters of what is fair and what is not.


Yeah, but that's a tough argument because the only people who know that courts of equity ever existed are lawyers and people from Delaware.
 
2013-06-24 09:05:43 AM

RexTalionis: The two cases currently before the Supreme Court isn't about the judges acting as arbiters of morality. Rather, the cases are asking judges to decide on issues of fairness, which is something that the law has historically been asked to do.

Back in the old days (we're talking pre-US English common law days), the courts of law and the courts of equity are separate. The courts of law decides on issues of the law, but where the outcome will be unfair, petitioners can petition the courts of equity, which decides in the interest of fairness.

In the US, the courts of law and courts of equity are combined in most states and the federal courts. So, historically, our judges have always had the duty and power to decide on matters of what is fair and what is not.


Thank you for that tidbit of knowledge
 
2013-06-24 09:06:20 AM

Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?


I could see a renewed push for the federal marriage amendment
 
2013-06-24 09:06:28 AM

Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?


The most likely scenario? Accelerate their current plans - try to get as many states to pass same sex marriage bans as possible before the tide of opinion changes overwhelming enough where that becomes impossible.
 
2013-06-24 09:07:55 AM

Rincewind53: RexTalionis: The two cases currently before the Supreme Court isn't about the judges acting as arbiters of morality. Rather, the cases are asking judges to decide on issues of fairness, which is something that the law has historically been asked to do.

Back in the old days (we're talking pre-US English common law days), the courts of law and the courts of equity are separate. The courts of law decides on issues of the law, but where the outcome will be unfair, petitioners can petition the courts of equity, which decides in the interest of fairness.

In the US, the courts of law and courts of equity are combined in most states and the federal courts. So, historically, our judges have always had the duty and power to decide on matters of what is fair and what is not.

Yeah, but that's a tough argument because the only people who know that courts of equity ever existed are lawyers and people from Delaware.


I just noticed that I have some serious subject-verb disagreement problems in that post. I need to drink some coffee or something.
 
2013-06-24 09:12:34 AM

OgreMagi: I have to agree with his argument.  Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.  The Supreme Court has one job.  To render an opinion based on how the Constitution applies to a specific case.


What Scalia seems to be doing is to simply say that anytime someone has a different opinion of Equal Protection, they are being a 'moral arbiter'. It's nonsense. Non-discrimination is fundamentally tied to moral beliefs and opinions. He acts like he doesn't do that, but he's deluded.
 
2013-06-24 09:15:35 AM

Aarontology: Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?

I could see a renewed push for the federal marriage amendment


They'll push it as part of the rhetoric, but they know it's a non-starter.

To get the amendment ratified, they need 3/4ths of the state legislatures. That means that they will have to convince 7 of the following 19 states to follow along:

New Hampshire, Maine, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Minnesota, Wisconsin, Washington, Oregon, Hawai'i, California, Illinois, Iowa, New Mexico, Nevada and Michigan.
 
2013-06-24 09:16:07 AM

DamnYankees: OgreMagi: I have to agree with his argument.  Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.  The Supreme Court has one job.  To render an opinion based on how the Constitution applies to a specific case.

What Scalia seems to be doing is to simply say that anytime someone has a different opinion of Equal Protection, they are being a 'moral arbiter'. It's nonsense. Non-discrimination is fundamentally tied to moral beliefs and opinions. He acts like he doesn't do that, but he's deluded.


Well these cases are hard for that reason.

What is discrimination and what isn't?

Is it discrimination to deny same-sex couples marriage licenses? Is it discrimination for refusing to hire someone based upon their hair style?

What is genetic and what is not? Surely homosexuality is on a genetic level, but could a decision to want a certain hair style be the same?

As our understanding of science increases we will be having many more of these kind of arguments.
 
2013-06-24 09:18:53 AM

cman: Well these cases are hard for that reason.

What is discrimination and what isn't?

Is it discrimination to deny same-sex couples marriage licenses? Is it discrimination for refusing to hire someone based upon their hair style?

What is genetic and what is not? Surely homosexuality is on a genetic level, but could a decision to want a certain hair style be the same?

As our understanding of science increases we will be having many more of these kind of arguments.


Exactly right. Scalia likes to pretend that these in fact are easy decisions; you just need to agree with his morality, which thereafter lefts you pretend like you're not using a moral compass at all, just justice-ness-ism!
 
2013-06-24 09:19:34 AM

RexTalionis: Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?

The most likely scenario? Accelerate their current plans - try to get as many states to pass same sex marriage bans as possible before the tide of opinion changes overwhelming enough where that becomes impossible.


That would be prohibitively expensive tho. I realize we might be getting ahead of ourselves with this line of speculation but...I really do worry about how the evangelicals might react to seeing their influence decline so sharply.
 
2013-06-24 09:24:51 AM
He is such
a piece
of shiat.
 
2013-06-24 09:25:17 AM

Weaver95: RexTalionis: Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?

The most likely scenario? Accelerate their current plans - try to get as many states to pass same sex marriage bans as possible before the tide of opinion changes overwhelming enough where that becomes impossible.

That would be prohibitively expensive tho. I realize we might be getting ahead of ourselves with this line of speculation but...I really do worry about how the evangelicals might react to seeing their influence decline so sharply.


They've already shown that they have the financial resources in California and several other states. And why would it be any more costly to them than any other lobbying? I think you're speculating whether evangelicals are going to start firebombing or lynching or shooting gays. I'm speculating about the possible legal moves they can still do to head off the decisions.
 
2013-06-24 09:26:33 AM
And to elaborate on my earlier statement, I see Prop8 being tossed at 7-2 or 8-1. The dissenting voice will be Alito and if he is joined by someone it would be Thomas.
 
2013-06-24 09:26:50 AM

RexTalionis: They'll push it as part of the rhetoric, but they know it's a non-starter.


I wouldn't be so sure. A lot of these people have lost all sense of reality. I wouldn't be surprised if the teabaggers decided that this was what they were going to campaign around. And since so many of them are true believers, they'll go full on extremists and end up alienating a ton of people, like they have with their outreach efforts to minorities, women, the poor, etc.

Obviously they wouldn't succeed, but that's never stopped them before. See Obamacare.
 
2013-06-24 09:29:43 AM

OgreMagi: Judges are not morality experts


Judges aren't usually engineers, either, and yet they regularly preside over patent infringement cases. So what?

OgreMagi: the idea of a "Living Constitution" renders the entire point of a Constitution moot


How? Also, the concept of "mootness" is something that is different in a legal sense than in common vernacular, so be careful about how you're using it.

OgreMagi: The Supreme Court has one job. To render an opinion based on how the Constitution applies to a specific case.


What, the Supreme Court also can't render decisions based on contracts? Or the common law? Or federal statutes? Where does it say in the Constitution that their one job is to render a decision based on how the Constitution applies? I thought you didn't believe in the "living Constitution"?
 
2013-06-24 09:29:58 AM

Aarontology: RexTalionis: They'll push it as part of the rhetoric, but they know it's a non-starter.

I wouldn't be so sure. A lot of these people have lost all sense of reality. I wouldn't be surprised if the teabaggers decided that this was what they were going to campaign around. And since so many of them are true believers, they'll go full on extremists and end up alienating a ton of people, like they have with their outreach efforts to minorities, women, the poor, etc.

Obviously they wouldn't succeed, but that's never stopped them before. See Obamacare.


We will have to see.

You never know.

They might surprise you.
 
2013-06-24 09:31:17 AM

cman: We will have to see.

You never know.

They might surprise you.


In what way?
 
2013-06-24 09:33:56 AM

Aarontology: cman: We will have to see.

You never know.

They might surprise you.

In what way?


They could accept it and move on.

That is possible
 
2013-06-24 09:34:18 AM
As RexTalionis and I have demonstrated in this thread, if you say "the Court should just decide based on the Constitution" around here, you'll get a hot load of legal theory in your face.
 
2013-06-24 09:36:45 AM

RexTalionis: Weaver95: RexTalionis: Weaver95: So assuming SCOTUS rules in favor of gay marriage....I wonder how the evangelicals will handle the news?

The most likely scenario? Accelerate their current plans - try to get as many states to pass same sex marriage bans as possible before the tide of opinion changes overwhelming enough where that becomes impossible.

That would be prohibitively expensive tho. I realize we might be getting ahead of ourselves with this line of speculation but...I really do worry about how the evangelicals might react to seeing their influence decline so sharply.

They've already shown that they have the financial resources in California and several other states. And why would it be any more costly to them than any other lobbying? I think you're speculating whether evangelicals are going to start firebombing or lynching or shooting gays. I'm speculating about the possible legal moves they can still do to head off the decisions.


I honestly don't know what they'll do. I do know that the abotion debate has prompted bombings and a couple murders. I'm wondering if gay marriage will spark similar attacks.

Of course they might push for a court mandated or legislative solution as well as slyly encouraging a few attacks on married gay couples.
 
2013-06-24 09:39:16 AM
Also, 10AM is a stupid time for this thread to go green, because the decision that renders all this speculation moot could come as early as 10:05.
 
2013-06-24 09:39:28 AM

cman: They could accept it and move on.

That is possible


It's possible, but incredibly unlikely.
 
2013-06-24 09:42:15 AM

Rincewind53: Also, 10AM is a stupid time for this thread to go green, because the decision that renders all this speculation moot could come as early as 10:05.


Then again, it's possible that they decide to hold off this decision until the next term. We don't know.
 
2013-06-24 09:47:58 AM
FTFA: This also has given rise to what Scalia decried as a sprawling application of the provisions of human rights and equal protection under the law.

The Constitution is necessarily a moral document as well as a political one. You may not like it, Antonin, but there's no way around it. Once the DoI says people are endowed of inalienable rights, any articulation of those principles will necessarily have moral content. Morality changes over time as people decide to treat their co-horts more or less humanely.
 
2013-06-24 09:49:43 AM

Rincewind53: As RexTalionis and I have demonstrated in this thread, if you say "the Court should just decide based on the Constitution" around here, you'll get a hot load of legal theory in your face.


img.fark.net
 
2013-06-24 09:51:04 AM
Scalia's comments during the March oral arguments for the Loving's marriage case followed a similar bent. "When did it become unconstitutional to exclude interracial couples from marriage?" he asked.

Read more here: http://www.charlotteobserver.com/2013/06/21/4121621/nc-lawyers-listen - as-justice-scalia.html#storylink=cpy
 
2013-06-24 09:51:59 AM

RexTalionis: Rincewind53: Also, 10AM is a stupid time for this thread to go green, because the decision that renders all this speculation moot could come as early as 10:05.

Then again, it's possible that they decide to hold off this decision until the next term. We don't know.


There's also Wednesday or Thursday. It's unlikely that they'll hit everything this morning, and they may want to drop the opinion and run off to their vacations quickly.
 
2013-06-24 09:52:12 AM

RexTalionis: Rincewind53: Also, 10AM is a stupid time for this thread to go green, because the decision that renders all this speculation moot could come as early as 10:05.

Then again, it's possible that they decide to hold off this decision until the next term. We don't know.


Possible, but highly unlikely. My thought is that some of the cases get pushed back until Thursday, since they've got almost 10 cases still left to decide. If Fisher, Shelby, Windsor, and Perry all come out today, the news media might explode.
 
2013-06-24 09:53:34 AM

OgreMagi: Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.


The Constitution is 4 pages long, plus 1 page of the Bill of Rights. To think that it was ever intended to be an exhaustive and comprehensive document, not open to interpretation as situations and times change, is not a valid belief.
 
2013-06-24 09:56:32 AM

Theaetetus: OgreMagi: Judges are not morality experts and the idea of a "Living Constitution" renders the entire point of a Constitution moot, so isn't a valid belief.

The Constitution is 4 pages long, plus 1 page of the Bill of Rights. To think that it was ever intended to be an exhaustive and comprehensive document, not open to interpretation as situations and times change, is not a valid belief.


You do have a point.

However, what is the point of Democracy if SCOTUS can make whatever rulings it wants under the guise of changing times?

There has got to be some sort of middle ground.
 
2013-06-24 10:03:27 AM

cman: You do have a point.

However, what is the point of Democracy if SCOTUS can make whatever rulings it wants under the guise of changing times?

There has got to be some sort of middle ground.


That's not what Living Constitutionalism means. Your scare theory applies no matter what the justices believe, it's all about the power of the Court in general. We have checks and balances.
 
2013-06-24 10:05:53 AM
During a question-and-answer period that followed the judge's speech, Sarratt asked Scalia if he would have taken a similarly hands-off approach to "Brown v. Board of Education," the legal cornerstone of school desegregation across the country.
Scalia said he would have voted with the majority on the case to create more educational opportunities for blacks. He added, however, that "a good result" doesn't make for good law. Had the courts not interceded, he said, state leaders would have eventually removed the racial barriers.


Read more here: http://www.charlotteobserver.com/2013/06/21/4121621/nc-lawyers-listen - as-justice-scalia.html#storylink=cpy
LOL

fark this retard
 
2013-06-24 10:05:54 AM

OgreMagi: And just so there is no confusion.  I hope they rule in favor of gay marriage.  Those overly happy, smug little bastards need to suffer the pain of marriage just like us straight people.


I've been saying this for a long time.

If you hate gays and want to make them miserable, let 'em get married just like us breeders!

And that whole "they'll destroy the institution of marriage" is a load of crap.  We've done that already.
 
2013-06-24 10:07:00 AM
ugh
 
2013-06-24 10:07:22 AM
 
2013-06-24 10:07:34 AM
He's right, they shouldn't be the arbiters of morality.  Good thing this case doesn't revolve around that and instead has to do with the equal application of the law.  His (or your) personal morals shouldn't figure into the decision.
 
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