Phoenix Rev is having a very busy day at work, so he asked me to post on his behalf regarding the Supreme Court hearing today.
Based on what he's been reading, it's looking like the Supreme Court is about 75% likely to punt the case entirely, given the questions the Justices asked and the comments of the Court as a whole. Which would mean that Judge Walker's ruling would be upheld, thus making Prop 8 unconstitutional.
However, Phoenix Rev will be reviewing more information and will post later this evening with his thoughts and information.
I truly think the more pressing import is on DOMA. You get DOMA out of the way, and no matter what Mississippi says, if you got married in New York, Mississippi has to recognize it if you move. And that is where the strongest 14th Amendment argument lies. And where the argument of regulation of marriage is the weakest-federal regulation of marriage and family is a no-no under the 10th amendment.
I truly think the more pressing import is on DOMA. You get DOMA out of the way, and no matter what Mississippi says, if you got married in New York, Mississippi has to recognize it if you move. And that is where the strongest 14th Amendment argument lies. And where the argument of regulation of marriage is the weakest-federal regulation of marriage and family is a no-no under the 10th amendment.
Yeah, I really wouldn't get hung up on Alito's response today, except to the extent that it gives us some insight into what he'll do next (and such insight is totally unneeded because we already know what he's going to do).
The question now is: what will Kennedy do? Can we infer anything from his response today about how he'll react to the DOMA case? Because it's pretty clear that, as usual, he's the only one who really matters.
The wariness that Justice Kennedy showed on Tuesday about reaching the foundation question of an equal right to marry will not be necessary in the DOMA case, since that is not at issue. Kennedy, who at several points on Tuesday showed his usual concern about interfering with the sovereign choices that state governments make, might well make some of the same points on Wednesday as the Court weighs the impact of a move by Congress to give marriage a federal definition, even though regulation of marriage has long been a special prerogative of the states.Wednesday’s argument will be watched closely to see whether Kennedy, and perhaps others, are more inclined to decide the fate of DOMA based upon a states’ rights rationale than on a right of equal protection for married same-sex couples seeking federal benefits. DOMA might fall on either rationale, of course. Of course, the House GOP leaders, in their capacity as the majority members of the Bipartisan Legal Advisory Group of the House defending DOMA, will be arguing that Congress clearly has the authority to define marriage for federal purposes, without intruding on states’ rights.
I am a bit surprised that people are assuming Roberts will vote to uphold DOMA, even to Uphold Prop 8. Roberts represented the people seeking to over-turn the Colorado Law in Romer v. Evans.
Inregards to something other than the Supreme Court, but still on topic
http://fivethirtyeight.blogs.nytimes...
Things sound good
I recently read through David Halberstam's The Fifties, and there was obviously a section that dealt with the emerging civil rights struggle and, in particular, the process the Warren Court went through when debating Brown vs. Board of Education. One of the justices in particular was very pro-segregation, but Earl Warren managed to convince him that history was being made, and that, for the credibility of the institution of the court itself, it was critical for the court to have a unanimous decision. There is clearly a significant historical shift in attitudes towards equal rights for non-heterosexuals, and there's a part of me that is holding on to some sense of optimism that the kind of thing Warren was able to pull off could happen here. I know what the "Warren Court" is because that's where Brown vs. Board of Education was decided, and people will for centuries know who Earl Warren was because he presided over such a phenomenally important moment in our nation's history. I have no doubt Roberts is aware of this, and, in some way, would like to leave the same legacy.
William Rhenquist urged the judge he was clerking for, Frankfurter, to be a voice to uphold Plessy V. Ferguson.
I really hope that Roberts has the charisma and pull that Warren or Marshall had in getting unanimous decisions. I also know that Scalia and Thomas love to be heard and to be read, and to quote their own dissenting opinions in cases where they write a later majority opinion.
As historical as a vote to legitimize gay rights is, the Warren court was faced with the very real possibility of insurrection, of rioting, and of retaliatory violence. As important as the struggle for equal rights for gays has been, troops have not been needed.
History is not always made in the majority either. Justice Harlan, dissenter in Plessy, OW Holmes wrote dissents that have been much more influential than the majority opinions.
Someone posted this in my facebook feed. Please tell me this actually happened.
JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?TED OLSON: When did it become unconstitutional to ban interracial marriage?
JUSTICE SCALIA: Don’t try to answer my question with your own question.
Someone posted this in my facebook feed. Please tell me this actually happened.
JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?TED OLSON: When did it become unconstitutional to ban interracial marriage?
JUSTICE SCALIA: Don’t try to answer my question with your own question.
It did. (Well... sort of.)
1868, say 1868. Now, to be fair, Scalia is not one for alleging that the constitution implies rights beyond what is explicitly stated. I cannot find too much fault in this, it is wonderful in its simplicity-so no right to privacy, no right to marry, no right to education. But I cannot subscribe to the idea that the US system of constitutional and common law is designed to be so simple. I think the main fault is that it is overly "Civil" and America is not a Civil Law country. It is an approach that is tainted by Ze Germans.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Then argue original textualism-Congress could have very easily made the 14th Amendment only about slaves and color. But it was specifically left neutral. Scalia is NOT an intentionalist, he is all about original meaning. The intent was very much about guaranteeing rights to the freed slaves. But the Meaning in plain English is couched in no such terms.
Then when Roberts and Scalia call you out for Brown nosing, make a pun about how you were Dredd-ing you would not get off Scott free. And vanish in a puff of smoke.
Just say it became unconstitutional in 2003, like Scalia himself said in his Lawrence dissent:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
(emphasis mine)
Umm, while appreciate the effort. Scalia's dissent was a long rant about judicial activism, the court attaching to a liberal movement in the legal profession to be anti-anti-homosexual, that it stamped all over precedents of previous cases, and that it went against a democratically elected moral law-moral laws are constitutional on rational basis review. He opined that the states very much have the right to discriminate against homosexuals on moral grounds.
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
He saw the court as crafting a brand new constitutional right to engage in Sodomy. To reiterate, Scalia has an ax to grind on Roe v Wade, and rights to privacy.
wi fi making it rain.
Umm, while appreciate the effort. Scalia's dissent was a long rant about judicial activism, the court attaching to a liberal movement in the legal profession to be anti-anti-homosexual, that it stamped all over precedents of previous cases, and that it went against a democratically elected moral law-moral laws are constitutional on rational basis review. He opined that the states very much have the right to discriminate against homosexuals on moral grounds.
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.He saw the court as crafting a brand new constitutional right to engage in Sodomy. To reiterate, Scalia has an ax to grind on Roe v Wade, and rights to privacy.
That's why it would have been so funny. What's he gonna do, say "oh, I was just trolling, LOL"
When I saw Sotomayor's comment that the nation let racial segregation "perk" for 50 years, I had to wonder where her brain went. It makes it sound like the nation conducted this grand social experiment for 5 decades to determine whether or not black people were people, and when we suddenly figured out they were, the supreme court rendered a proper decision. I can't think of a rational individual who would use such an explanation to justify the continued denial of rights to a fellow human being. She should be ashamed.
If there's one good that came out of all of this, the anger I felt prompted some pretty vigorous sprints on the elliptical tonight.
It's been said before, but I'll say it again: thanks for putting together these summaries, Phoenix Rev.
It's been said before, but I'll say it again: thanks for putting together these summaries, Phoenix Rev.
+1
You can hear the recording of today's proceeding here.
Again, this was incredibly frustrating to listen to. The SCOTUS really doesn't want to tackle this.
And now that Kennedy and Alito have raised the idea that the Court may have made a mistake in accepting this case, I have little hope that we now beginning a rather long endless loop of litigation.
The only hope I have is that history will look back at today's hearing and decide that there should be a pox on the entire court for being gutless.
I wonder what their reticence means for DOMA. Based on what I've read, the DOMA case will be more difficult to ignore, and they're going to most likely have to say something. I know the legal arguments in DOMA are completely different, but it sure looks to my non-lawyer self like the real reason for the dodge on prop8 is ideologically motivated.
We will see where the court goes on Prop 8. Personally, for me, a ruling that private citizens cannot take up the defense of a state law would go very far for gay rights, women's rights, and free speech. It would also go a long way towards judicial efficiency. Or it might have some legislators passing measures to hire special counsel if the governors or attorneys general decline to defend certain laws. To legitimize special interests in this way just serves to create more chaos in an already chaotic federal system.
Yet another Supreme Court Female Doggo slap to the 9th Circuit was inevitable. But an expectation of a unanimous court on Prop 8 was unrealistic, like asking for a Unicorn on Christmas. Scalia and Thomas have specific axes to grind on Roe v Wade, on non-enumerated rights.
It is a real egg on the face moment for whichever justices argued to grant cert, instead of issuing an opinion without a hearing that the 9th Circuit could not hear an appeal without proper standing, and it was non parties to the suit carrying on the appeal. I doubt that the current 6th and 9th Circuits are capable of feeling embarrassed, but the 9th should be. This is fundamental, first year of law school type stuff.
If the court was not poised to consolidate Prop 8, with other state challenges, and DOMA, it becomes a why bother moment. Brown v Board of Ed consolidated many state actions and one from DC into one ruling.
Scotusblog seems to think that Kennedy is the deciding factor and he's leaning towards killing DOMA.
Transcript from the video:
Same-sex marriage will not redefine marriage, it will undefine it, and unravel it and in so doing will undefine children. This is not progressive legislation. This is regressive. As a gay man, I can state catagorically, it is not homophobic to oppose same sex marriage. In fact, it is very wise to maintain marriage as it has always been. To the Supreme Court, legislators and jurists around the country: slow this train down. Ignore the media's relentless manufactured urgency to institute same-sex marriage. Slow down. Put on the breaks. Thank you.
How do you undefine children? Divide them by zero?
Phoenix Rev wrote:Transcript from the video:
Same-sex marriage will not redefine marriage, it will undefine it, and unravel it and in so doing will undefine children. This is not progressive legislation. This is regressive. As a gay man, I can state catagorically, it is not homophobic to oppose same sex marriage. In fact, it is very wise to maintain marriage as it has always been. To the Supreme Court, legislators and jurists around the country: slow this train down. Ignore the media's relentless manufactured urgency to institute same-sex marriage. Slow down. Put on the breaks. Thank you.How do you undefine children? Divide them by zero?
I believe the answer can be found in the first book of Kings.
You cut the baby in half.
Two people being in a loving and committed relationship will undefine marriage? Sorry folks, my wife and I are doing that right now! BAM! No more marriage! Anaracy! Woooooo! *rolls eyes*
Supreme Court Justices Brought To Tears By Heartfelt Testimony Of Bigot Who Hates Gay People
I prefer the one where Kim Jung-Un says that he supports gay marriage: "I am not a monster."
Scotusblog's take on the DOMA case:
If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.
I wonder what Clement has to say about federal employees paying state income and payroll taxes then.
I also really love reaching back to the 1850's to differentiate between state citizenry and federal citizenry. No gay person can ever be a citizen of the United States just like no African free or otherwise can be.
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