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USSC, DOMA, and Prop 8

Races for the Senate, U.S. House, etc. and other issues of national importance.

USSC, DOMA, and Prop 8

Postby kurt_w » Mon Dec 10, 2012 3:56 pm

The Supreme Court is going to hear two high-profile cases related to same-sex marriage.

First, it's going to take up challenges to the "Defense of Marriage Act". DOMA specifies that the federal government cannot recognize same-sex marriage, and no state is required to recognize any same-sex marriage conducted in another state. (Normally, under the "full faith and credit" clause (Article IV, section 1) of the constitution, states have to recognize each others' marriage laws).

Second, the court is taking on California's Proposition 8, the ballot initiative that attempted to ban same-sex marriage in the state (it was declared unconstitutional by both the district court and appeals court).

I don't have a clear feeling for how this Supreme Court is likely to rule. My guess is that they may repeal DOMA, letting individual states write their own marriage laws but not letting them refuse to recognize legally contracted marriages from other states. I would be astonished if they went as far as to require legalizing SSM nationwide, and on the other hand would be moderately surprised if they upheld DOMA in its entirety.

As for Prop 8, I really have no idea what they'll decide.
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Re: USSC, DOMA, and Prop 8

Postby snoqueen » Mon Dec 10, 2012 4:34 pm

With Justice Kennedy the swing vote, I think DOMA is dead. Kennedy's got a lot of individual-rights seasoning to his decisions and in this case I believe it favors the liberal side. Prop 8? I wouldn't be surprised if they write a narrowly-drawn decision specific to California (upholding the lower courts) and let the whole issue simmer a few more years. So basically I agree with what you wrote with one deviation:

I don't think they'll make the conservative states accept the marriages performed by progressive states, although the federal government will avail same-sex married couples of the federal benefits and protections already given to opp-sex couples.

How they'll write that I have no idea, so to me that's the interesting part. Since the ACA ruling, where Roberts came up with his big surprise, I'm thinking we're in for a period of creative decision-making these next few years.
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Re: USSC, DOMA, and Prop 8

Postby johnfajardohenry » Tue Dec 11, 2012 3:47 pm

Perhaps a bit off topic but it might be interesting for you to go listen to the oral arguments at the CA Supreme Court on Prop 8.

The arguments for the side supporting Prop 8 were more or less what one might expect. Interesting, but not much new and mainly had to do with whether Prop 8 was correctly passed.

There were two sets of lawyers against Prop 8, the CA DA and some LG group. Both of them made essentially the same legal argument. They both seemed to agree that it was properly passed and was thus part of the Constitution and thus "Constitutional" by definition. (State con only, of course)

But then both sets of lawyers argued that it is not fair and morally wrong and begged the Justices to come up with some rationale for overturning it.

It was pretty comical. When the facts are against you argue the law. When the law is against you argue the facts. When both are against you argue.

It is just what they did for several hours.

In the end the Justices could find no way to make the state constitution unconstitutional.

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Re: USSC, DOMA, and Prop 8

Postby kurt_w » Tue Dec 11, 2012 7:18 pm

OK, earlier today I said I had no idea what the court would decide on Prop 8. But if JFH says there are no good arguments against Prop 8, that's a powerful indication that Prop 8 is doomed. Who else, in such a short time on the DPF, has run up such a spectacular record of being wrong?
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Re: USSC, DOMA, and Prop 8

Postby snoqueen » Tue Dec 11, 2012 7:39 pm

Don't let it bring you down, Kurt. Some of us are, well, more inscrutable than others.

Here's an op-ed piece from the Washington Post on the USSC and gay marriage. Charles Lane, the author, reminds us that historically, when the Court has pushed a decision ahead of public opinion, the results over time have been distinctly mixed. He writes:

Even in the South, support for gay marriage is 14 percentage points higher than it was a decade ago, according to Pew. Political reality, in this case, may counsel judicial restraint.

Procedural and other particularities of the two cases before the court could permit the justices to keep a door open to gay marriage without slamming another on its opponents.

Marriage equality is important. So, too, are national harmony, self-government and the rule of law. Whatever it does, the Supreme Court should make it possible for the American people, sooner or later, to have them all.


http://www.washingtonpost.com/opinions/ ... ml?hpid=z2
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Re: USSC, DOMA, and Prop 8

Postby kurt_w » Tue Dec 11, 2012 9:00 pm

Oh, JFH doesn't bring me down; I find him hilarious. One of the few things I miss about the presidential campaign was JFH's occasional flights of absurdity. (Remember about how Obama was going to drop out of the race a week before the election?)

Flanders knows that he's not to be taken seriously, but JFH probably has no clue about what a fool he is.
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Re: USSC, DOMA, and Prop 8

Postby johnfajardohenry » Wed Dec 12, 2012 2:39 pm

kurt_w wrote:OK, earlier today I said I had no idea what the court would decide on Prop 8. But if JFH says there are no good arguments against Prop 8, that's a powerful indication that Prop 8 is doomed. Who else, in such a short time on the DPF, has run up such a spectacular record of being wrong?


Glad you read my note so carefully. I said that under the CA Constitution even the opponents seemed to admit that there were no good arguments against it.

As I said:

In the end the Justices could find no way to make the state constitution unconstitutional.


Since you seem to follow this closely, I'd be curious to hear your take on how an amendment to a Constituion (CA's in this case) can be unconstitutional under that Constitution.

I await with bated breath.

I offered no opinion whatever, or even mention of the pending USSC case. I expect the arguments in that case will be completely different than in the CA Supreme Court case.

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Re: USSC, DOMA, and Prop 8

Postby SnowBear5 » Thu Apr 11, 2013 1:00 pm

So if I understand JFH's post correctly, anything stuck into a state constitution would be Constitutional. If, for instance, a state decided to ban interracial marriages that would be absolutely fine. So would reinstating slavery, or an amendment to do away with the elections and instead have a governor for life? Of course none of these would work because they would violate under earlier parts of the Constitution which garantee basic human rights for the citizens of that state-and of all basic human rights, the right to be married to someone you love, to be a family, must be one of the most fundamental. Anything which strips citizens of basic rights must be unconstitutional 1 vote all the basic civil rights guarenteed to citizens in that Constitution.
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