If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.
But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?
DSGamer wrote:If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.
But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?
"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is. However, a SCOTUS case is still unpredictable when you consider sh*te like Kelo vs. New London.
What this trial is doing is making a farce out of the alleged harm that same sex marriages and households cause. Makes you wonder what the defense's briefs to the Supremes are going to look like, if this is even their 'A' game.
From my perspective on the SCOTUS being a court that rules in favor of corporations the vast majority of the time, i'd predict that they would uphold gay marriage on the economic argument -- more gay marriages is good business.
I at first assumed they would shoot it down to save corporations money on insurance for partners, but DPs already destroy that argument.
"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.
Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.
GioClark wrote:"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.
Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.
They have, however, struck down at least one State constitutional amendment explicitly discriminating against homosexuals, which is what California's Prop 8 is.
http://en.wikipedia.org/wiki/Romer_v...
As weak as the anti-SSM case seems to be in this trial, I hope that the imminent SCOTUS case doesn't come down to politics. A victory at that level will could lay the groundwork to bring down the Defense Of Marriage Act.
After the testimony of Bill Tam, Prof. Miller and Mr. Blankenship, the only rationale for believing that gay marriage is a threat to straight marriage and society is "because I think it is."
Keep in mind there were several witnesses they had listed that backed out at the last minute. Considering that Tam was also practically screaming to get out of the trial but was allowed in anyway, I have a feeling that the defense just decided to throw their crap witnesses to the dogs this trial and save people who don't look like complete morons for the SC.
Phoenix Rev wrote:After the testimony of Bill Tam, Prof. Miller and Mr. Blankenship, the only rationale for believing that gay marriage is a threat to straight marriage and society is "because I think it is."
Keep in mind there were several witnesses they had listed that backed out at the last minute. Considering that Tam was also practically screaming to get out of the trial but was allowed in anyway, I have a feeling that the defense just decided to throw their crap witnesses to the dogs this trial and save people who don't look like complete morons for the SC.
No witness testimony is allowed at that level. Lawyers and briefs only.
Oh then I have absolutely no idea. Maybe they really are just that stupid.
Also, no statements or evidence not admitted to the trial record can be presented on appeal.
For me the greater subtext is the idea of voter referendum law. Just how far can the voter go without federal checks and balances? Can a law or state constitutional amendment go from the booth to the record? These have been highly controversial for centuries.
DSGamer wrote:If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.
But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?
Right. But you missed my point entirely. All of the Republican nominations for the last 20 years have came from this background of taking the Constitution at its word and avoiding interpreting it as a "living document". That's a constant argument. So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense, if you're a member of the Strict Constructionist wing of the court (Alito, Thomas, etc.). Therefore, it will be interesting to see how they would handle this case. If their intellectual integrity and rigor could stand the test of something they disagree with.
Yeah, I don't see any way you can be strict about interpretations of the constitution and not rule against this. It is very clearly discrimination. There are lots of arguments put forward about how it will lead to goat love, etc. or that historically marriage has meant this but when you look just at the constitution then the law is in violation.
So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense
How so, from a literalist point of view?
DSGamer wrote:So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense
How so, from a literalist point of view?
Fourteenth Amendment, Section 1:
"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." (emphasis mine)
Uh, it takes a good amount of interpretation to get there from the fourteenth though - SCOTUS has certainly never made that connection, and if it was an explicitly clear anti-discrimination clause, they wouldn't have needed the 15th or 19th.
Not really. The 14th Amendment's expansion of the Due Process clause from the 5th Amendment was what drove Loving v. Virginia, with the court stating that marriage is one of the basic civil rights of people, and that the statutes at the time were deemed to be "directly subversive" to the principle of the 14th Amendment. What this case lays out are parallels to the Loving case, with the exception being that we're looking at same-sex couples instead of mixed-race couples.
In what way does a law preventing two people from getting married based on each person's race differ significantly from a law preventing two people from getting married based on each person's gender?
In what way does a law preventing two people from getting married based on each person's race differ significantly from a law preventing two people from getting married based on each person's gender?
Because interracial porn is hot, guy on guy is gross.
This, in my opinion, is the heart of why the prosecution has been bringing out all of these economic and social good arguments, along with beating down the "it's for the family" and "protect the children" arguments. The only argument that *can* attempt to show that interracial marriage is fundamentally different from same sex marriage is an argument based on the lines of "one of these is bad for the state and the other is not". For example, one will cost the state money, or one will decrease the stability of families (in which the state has an interest), or it will lead to pedophilia, etc.
If you show that same sex marriage is in fact *in* the interest of the state, that it has a positive economic impact, that it has a positive social impact, and so on... that makes it really hard to argue that the state has an interest in preventing it for any reason other than popular prejudice.
Blankenhorn then says that in those societies that allow polygamous marriage, it still is a marriage of one man to one woman because he marries each of those women one at a time, so that constitutes a separate marriage. (This is surreal. I am completely dumbfounded.)
Wait, so gay marriage will lead to polygamy, and polygamy is bad, therefore gay marriage is bad.
But polygamy is really just straight marriage happening a bunch of times to the same guy, and straight marriage is good, so polygamy is good?
LOGIC ERROR
So, I'm not a lawyer, but does this need 30 days? Based on the testimony and evidence, doesn't it seem really obvious? Or am I missing something?
Judge Walker wants the time to pore over the submitted documentation so he can be better prepared for closing arguments and for any questions he might have of the two sets of council.
Sooo... reading this, did the defense ever get to stop face-palming? This needs one of those looping gifs
Face-palm "Stop talking stop talking stop talking... Oh! A new question! YES! It's an easy one! Just say 'Yes!' Don't... " Face-palm "Stop talking stop talking stop talking... Oh! A new question!"
EDIT: I'm really looking forward to the outcome here. Something tells me that Iowa Conservatives will use the first opportunity they get to put the brakes on SSM here. I'd love to see this established at the Federal Level so that we can let the crazies get on with the territorial bickering over State's Rights and let the sane people tend to their families.
I'm not worried about Iowa, actually, they buck the trend by being very socially conscious (and they have *great* beef products, so I'm hesitant to offend them.)
What does worry me is that this court and it's immediate preceding one have made at least two, possibly three judgments which break with precedent (Bush v Gore, the recent campaign funding one, and arguably the 2nd Amendment decision) but are not due to a change in circumstances, as far as I can tell. It's ironic that after all the yelling about "judicial activism", the only concrete examples in the last few decades come from Federalist Society judges...
They're only activist judges if they don't agree with you.
GioClark wrote:"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.
Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.
Did anyone else catch this section of the State of the Union address last night?
[quote=President Obama]Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.
Did anyone else catch this section of the State of the Union address last night?
President Obama wrote:Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.
Well indeed, but if the 'common values' include an aversion to SSM, and you don't let anyone marry someone of their own gender, then no-one's being treated differently from anyone else, right?
I'm certain that line was written specifically so that people on either side of the SSM issue could read what they wanted from it.
Nomad wrote:Did anyone else catch this section of the State of the Union address last night?
President Obama wrote:Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.
Well indeed, but if the 'common values' include an aversion to SSM, and you don't let anyone marry someone of their own gender, then no-one's being treated differently from anyone else, right?
This came up earlier. If the rule is only relevant to some of the population, then it isn't necessarily the "same" for everyone. The example was that if it is illegal to sleep under a bridge, then it is unlikely that you will charge a middle class or higher person with breaking this rule. It will target an already challenged minority. Most people sleeping under bridges are poor and not in a position to have another place to sleep. "Everyone equally" is sometimes "separate but equal" in disguise.
In SSM, the population in question doesn't want to marry someone of the other gender. In some cases the idea of sex with someone of the opposite gender is abhorrent, so to say that "they could marry if they wanted to marry" is like saying "you can marry a (insert something that turns your stomach) if you really want to get married". It isn't about whether or not they can enter into the state of marriage, but rather with whom they can enter into a marriage.
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