Supreme Court Gay Marriage Rulings Will Come Tomorrow

Discussion in 'Too Hot for Swamp Gas' started by GatorBen, Jun 25, 2013.

  1. g8tr80
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    g8tr80 Well-Known Member

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    There...is...always...something...next.......

    Wanna play? What's next? I gave my opinion. And given the Federal Government's position on what type heathcare (i.e. abortion / sterilization / birth control) MUST be provided regardless of any religious affiliation, I bet I'm right.
  2. mocgator
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    mocgator Well-Known Member

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    In a ripping dissent, Scalia says that Justice Anthony Kennedy and his colleagues in the majority have resorted to calling opponents of gay marriage "enemies of the human race."

    But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "dis- parage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homo- sexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
  3. mocgator
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    mocgator Well-Known Member

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    Why the sudden change??
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  4. Gatorrick22
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    Gatorrick22 Well-Known Member

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    Oops, I meant no he wasn't.

    Got confused, thanks for bringing it to my attention. :grin:
  5. GatorBen
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    GatorBen Well-Known Member

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    I thought this point raised in Randy Barnett's analysis on SCOTUSBlog was interesting: http://www.scotusblog.com/2013/06/federalism-marries-liberty-in-the-doma-decision/

    Kennedy pens what is at its heart a "liberty" and due process opinion, but uses federalism as the way to get there without the Windsor opinion itself becoming a 50 state solution. It in essence blends the federalism and equal protection analyses in a way that we haven't seen before, by considering them together instead of doing the subsequent analysis of "1. is there a basis for federal power 2. does it violate another constitutional principle."

    In essence, it uses the fact that the federal government has interjected itself into a traditionally state-based arena as the trigger for heightened scrutiny for DOMA. By doing so it increase the scrutiny on the federal law, but does it in a way that doesn't make sexual orientation a suspect class and on its face raise the scrutiny level on state laws in a way that would make them all necessarily fail as well.
  6. g8rjd
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    g8rjd Well-Known Member

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    "In a way we haven't seen before" is generally not a virtue in constitutional law.
  7. GatorBen
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    GatorBen Well-Known Member

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    I think the most intellectually honest option would have been to write a pure EP clause opinion with heightened scrutiny and if that makes it a 50 state solution so be it. But pretending that politics doesn't frequently influence the Court and isn't the likely reason they didn't do that is naive I think.

    And once you recognize that political constraint as being real (if typically unmentioned), I think that creating a new test in ruling on a law that is largely without precedent (I haven't researched, but I would venture to guess that an equal protection/substantive due process challenge to the federal treatment of a status that is indisputably nearly exclusively within the power of state governments to grant probably doesn't come up much) is certainly within the power of the Court.

    And it isn't entirely without precedent, it is to a large degree similar to the third argument the federalism professors amicus raised and supported, and there is some inherent appeal to the idea that a court should be more suspect of federal classifications when the federal government is taking a highly unusual action in an arena where federal power is questionable at best.
  8. MichiGator2002
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    MichiGator2002 VIP Member

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    That is only intellectually honest if homosexuality deserved more than rational basis review, which... well, it doesn't. Try as people might, sexuality and sex aren't the same thing, at all, or even close. The only reason we end up with "rational basis plus" or, if one prefers, "chickenpoop intermediate scrutiny", is because the judges have juuuuust enough shame to know they don't want to just start handing out suspect classes like food stamps, but they still want to have the result. I thought "undue burden" was the grand poobah of 14th amendment asspulls until this "Romer"-"Windsor" tripe.

    A single 50 state answer was bad law in 73 and it would have been bad law today.
  9. GatorBen
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    GatorBen Well-Known Member

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    The only reason no one has come out and said heightened scrutiny is for fear of the political blowback from doing so. I think at the time of Romer you probably could have gone down the checklist of discrete and insular minority, lacking the ability to protect itself through traditional democratic processes, historically subject to stigma or discrimination, and filled in almost all the boxes that have ever shown up to get to a suspect classification. I think there's a better argument for sexual orientation than there is for gender, to be quite honest. That's the reason I think it's more intellectually honest to just call it a suspect class and reach the same conclusion, but twisting to get to that result is better than nothing in my mind.
  10. g8rjd
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    g8rjd Well-Known Member

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    I think much of the litigation below actually indicated that you're correct Ben. The only real debate was over whether it is an inherent characteristic. Otherwise, it almost admittedly met the suspect class criteria.
  11. MichiGator2002
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    MichiGator2002 VIP Member

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    The totally legitimate political blowback. Homosexuality is, barring the identification of an actual, demonstrable genetic trait, a preference, *no matter how closely held or unconsciously derived*. It is no more legitimate suspect classification than preferring redheads would be. Or just preferring the color red, for that matter. It is suitable for rational basis and politics are the only reason it is ever up for discussion for it to be anything else.
  12. g8rjd
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    g8rjd Well-Known Member

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    And, there we go...we have a summary of the arguments against that point. ;)
  13. MichiGator2002
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    MichiGator2002 VIP Member

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    In total seriousness, I think gingers have a better claim to higher EP scrutiny than homosexuals.
  14. GatorBen
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    GatorBen Well-Known Member

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    They've already got it, just say "Irish" instead of "Ginger" and ride national origin rather than reinventing the wheel. :laugh:
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  15. MichiGator2002
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    MichiGator2002 VIP Member

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    I will say albinos also.
  16. g8rjd
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    g8rjd Well-Known Member

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    I initially decided not but, but hell, I have to ask. How do you know? Is it a preference you have had in the past and changed? Or if you are hetrosexual, is that merely a preference that you can give up? Can you decide that women are not your sexual cup of tea anymore and now you'd like to find a guy instead? If it is the same as prefering a particular flavor of coffee, do you know that from experience?

    Being hetrosexual feels pretty inherent to me and I have no desire to ever change that. What makes it a mere preference for you?
  17. MichiGator2002
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    MichiGator2002 VIP Member

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    Well, between two presumptions -- a psychological one and a genetic one -- the former is the more restrained and empirically minded one, in absence of definitive proof either way. Do guys that dig BBW have a genetic disposition as well?

    There is a sort of irony I have always found in people pushing a genetic theory, and that is that if sexual preference is a genetic code, it is basically the case where you have a malapdaptive genetic malfunction, at least in accord to everything we hold scientifically about survival, propogation, and change of species. There is no homophobia in nature -- there are traits that benefit an organism in surviving and reproducing and those that don't. If there is a "gay gene"... guess which type it is? It would be akin to hemophilia, or dwarfism (add dwarfs to my list of "deserves higher scrutiny than homosexuals").
  18. Lawdog88
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    Lawdog88 Well-Known Member

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    Meaning that if any alleged homosexual gene was not desirable in and of itself, and / or was truly obstructive to other desirable traits related to the supreme human aspiration (or was just a "bling" or "luxury" gene), i.e., survival and propagation of the species, it would be genetically rejected and mutated out, one would assume, within a reasonable number of generations.

    It hasn't.

    Must not be there.
  19. Gatorrick22
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    Gatorrick22 Well-Known Member

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    So it's learned or programmed psychological behavior?
  20. MichiGator2002
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    MichiGator2002 VIP Member

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    Well, not entirely, hemophilia and CF and such haven't, but there is no question that they are maladaptive traits -- things that if took the "human" out and just looked at ourselves as "Geneticist specii", are undesirable.

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