US Supreme Court Hears Prop 8 Case

[Guard Dog]

http://nbcpolitics.nbcnews.com/_news/2013/03/26/17460260-supreme-court-hints-that-it-wont-issue-sweeping-ruling-on-same-sex-marriage?lite

 

The short of the story is it does not appear to SCOTUS is going to come right out and declare that it is unconstitutional to ban gay marriage. That said it looks unlikely they will overturn the 9th Circuits ruling on Prop 8 so it (Prop 8  ) will likely be permanently overturned either way.

 

I have to tell you guys I'm torn on this one. You all know where I stand on the subject of gay marriage, and indeed any subject regarding personal liberty. But I have a problem with this whole mess. The voters of California by a margin of some 52-53% decided they did not want gay marriage recognized in their state. However wrong headed I think that decision might be it was their decision to make.

 

That decision was upheld by State courts then overturned the Federal 9th Circuit Court. This looks like a clear 10th Amendment violation to me. The Federal Court never should have taken this case as it did not concern anything but the state of California and could not really be called a violation of any ones rights since there is no Constitutional right to marry.

 

The prediction here is that the SCOTUS will refuse to rule on the case on the basis that the plaintiffs do not have standing to bring it. Kennedy all but stated that was his intention. If that happens then the 9th Circuits ruling will stand and gay marriage becomes legal in California. That is good in a way because it is a good outcome but it is not good because 9 unelected judges usurped the will of over 7 million people. That is bad... it's very very bad. 

 

I think the right thing to do would be to vacate the 9th's ruling and refer it back to the state court because it IS a state issue. But that would mean Prop 8 stands and the liberty of gay people to live their lives the way the wish is infringed.

 

Quite a nasty paradox. Achieve the right outcome by a bad method to grant some people liberty now only to hazard losing even more liberty by the same process later, or have a wrong outcome but the will of the voters is protected and we are less likely to lose more liberty later.

 

Like I said, I'm torn on this one. Very seldom do proponents of Liberty and the 10th amendment find themselves at odds.

Edited March 26, 2013 by Guard Dog

[Bartimaeus]

If the situation was reversed, (that is, if the populace voted for gay marriage to be legalized and the judges overturned it), I cannot even imagine how large and volatile the outcry would be. I support the voters, regardless of the issue.

[Hurlshort]

A popular vote should never be used to determine whether discrimination against a minority group is ok.  The state of California decided to allow gay marriage in the first place as the constitution did not rule it out, prop 8 changed that, but it is a discriminatory policy so I have no problem with the SCOTUS throwing it out.  I do not see them applying it to all states though, I think they will apply it narrowly to California only.

 

Leaving this whole thing to popular voting is what created the mess.  You had lobby groups pumping millions into a scare tactics campaign that spread misinformation all over the place.  

 

Also, DOMA should be getting the boot as well.  Thank goodness for that.

 

Prop 8 and DOMA are designed to discriminate, that is all there is to it.  

Edited March 26, 2013 by Hurlshot

[Gorth]

Yeah democracy sucks when people vote all the wrong ways...

 

I can see the conundrum though. At what level (state or federal) should the right of minorities be protected? Is it ok for a state to discriminate against a group of people if due process has been followed? What if it wasn't gay discrimination but say, some ethnic group or a particular disability? Hypothetical example, a law that bans all redheads from working for a state institution because of hair colour? Should the federal institutions overrule such a state law (because it is not explicitly covered in the constitution... I think)?

[Hurlshort]

I should add I have no problem protecting private groups, like the Boy Scouts, from having discriminatory policies.  Societal pressure should be enough to convince most groups not to discriminate, and there are usually options for minorities to go to.  The same can be said about churches, they can discriminate (although the argument over whether they then deserve government tax breaks is a big one.)  But we only have one federal and state government (in each state) and it should not have discriminatory policies, regardless of public opinion.   

[alanschu]

Correct me if I'm wrong (because I probably am), but doesn't the US Constitution detail out the Checks and Balances/Separation of Powers, and in this case the judicial branch is exercising prudence over the legislative branch?

[AGX-17]

Correct me if I'm wrong (because I probably am), but doesn't the US Constitution detail out the Checks and Balances/Separation of Powers, and in this case the judicial branch is exercising prudence over the legislative branch?

You're almost completely on a tangent, here.

 

http://www.merriam-webster.com/dictionary/prudence

 

The SCOTUS has the power to rule whether or not a law passed by any state or by the federal legislature is constitutional. In other words, the US Constitution trumps all other laws, and if a law drafted is found by a court to conflict with the Constitution then it is invalidated. The state of California was sued on the grounds that Proposition 8 violated the 14th Amendment of the US Constitution, specifically the Equal Protection clause.

Edited March 27, 2013 by AGX-17

[Hurlshort]

John Adams wrote:

 

If a majority are capable of preferring their own private interest, or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the constitution, in favor of justice, to compel all to respect the common right, the public good, the universal law, in preference to all private and partial considerations... And that the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of history... To remedy the dangers attendant upon the arbitrary use of power, checks, however multiplied, will scarcely avail without an explicit admission some limitation of the right of the majority to exercise sovereign authority over the individual citizen... In popular governments [democracies], minorities [individuals] constantly run much greater risk of suffering from arbitrary power than in absolute monarchies...

[Calax]

I think, GD, the issue you have isn't one you should have. The entire point of the suit is that the amendment passed violates the human right to equal protection under the law for all citizens. Which is EXACTLY what the entire process is designed to do. I mean, if Mississippi passed a law that if your Melanin level was above X you couldn't get married, you'd see that thing get shot down faster than you could spit, because it runs contrary to the constitution.

 

Isn't the entire purpose of the Judicial body to be uncontrolled by public opinion and thus would be able to do the "right" thing rather than the "popular" thing?

[AGX-17]

I think, GD, the issue you have isn't one you should have. The entire point of the suit is that the amendment passed violates the human right to equal protection under the law for all citizens. Which is EXACTLY what the entire process is designed to do. I mean, if Mississippi passed a law that if your Melanin level was above X you couldn't get married, you'd see that thing get shot down faster than you could spit, because it runs contrary to the constitution.

 

Isn't the entire purpose of the Judicial body to be uncontrolled by public opinion and thus would be able to do the "right" thing rather than the "popular" thing?

The 14th Amendment was designed exactly to protect black former slaves from discrimination in the South. Gay marriage would have offended the framers and the authors of the 14th Amendment, save whatever ones may have been (secretly) homosexual.

 

And judges are supposed to be impartial, but they're often chosen by politicians. the 5-4 conservative-liberal split on the SCOTUS is due to politic (whoever's president when a justice retires or dies gets to choose the replacement,) and most of their rulings have been split down political lines, i.e. Citizens United.

[Calax]

 

I think, GD, the issue you have isn't one you should have. The entire point of the suit is that the amendment passed violates the human right to equal protection under the law for all citizens. Which is EXACTLY what the entire process is designed to do. I mean, if Mississippi passed a law that if your Melanin level was above X you couldn't get married, you'd see that thing get shot down faster than you could spit, because it runs contrary to the constitution.

 

Isn't the entire purpose of the Judicial body to be uncontrolled by public opinion and thus would be able to do the "right" thing rather than the "popular" thing?

The 14th Amendment was designed exactly to protect black former slaves from discrimination in the South. Gay marriage would have offended the framers and the authors of the 14th Amendment, save whatever ones may have been (secretly) homosexual.

 

And judges are supposed to be impartial, but they're often chosen by politicians. the 5-4 conservative-liberal split on the SCOTUS is due to politic (whoever's president when a justice retires or dies gets to choose the replacement,) and most of their rulings have been split down political lines, i.e. Citizens United.

Oh I know that. But the point overall stands that the Supreme Court, at least initially The idea was that it was a body that wouldn't be swayed by the popular politics due to the fact that their jobs weren't dependent on a voting public. They are political unfortunately, but they also have to explain every one of their decisions completely.

 

The idea that GD seems to be having trouble with is that the Supreme Court can vacate a state/national law as part of their job, which invalidates the public will. Except that that's part of the reason the SCOTUS exists, to protect the minority from the majority. And the point of the legal battle is that the states law is in conflict with constitutional law.

 

And for the record, one of the things that was said during the Prop 8 battle by the "anti-gay" side was that if it wasn't passed, schools were going to be forced to teach a "gay lifestyle" in high schools as part of curriculum.

[PK htiw klaw eriF]

And for the record, one of the things that was said during the Prop 8 battle by the "anti-gay" side was that if it wasn't passed, schools were going to be forced to teach a "gay lifestyle" in high schools as part of curriculum.

I thought it was something about children being forced to gay marry by the state?

 

Anyways, I don't think that someone's right to marry should be decided by popular opinion. If it was, then one of my good friends could not have married his lovely wife in my state.(They're an "interracial" couple)

Edited March 27, 2013 by KaineParker

[Guard Dog]

Ok, I'm going to play devils advocate here because generally speaking we all agree on this one.

 

It is not accurate to describe gay folks as a minority. When you get down to brass tacks being gay is only about who-sticks-what-where in the bedroom. If I put you in a room with 100 guys all dressed the same and told you 10 were gay you would not be able to tell me which ones they were. If I put you in that same room and told you 10 were black you could pick them out in a few seconds. If being gay makes someone a minority then so does scuba diving because scuba divers are scuba divers only because they scuba dive. So if they are not actually a minority they are not entitled to any special protection under the 14th or any other law. After all no one is stopping them from getting married, they are just being stopped from marrying someone of the same gender. Since there IS no Constitutional right to marry there IS no discrimination. Since there is no federal right to marry the 10th amendment specifically assigns that power to the "people and the states". Right or wrong the people have spoken.

 

Now if they had passed a law stating that black people could not own land, or that women could not vote that WOULD be a violation of federal (as well as every other level of law).

 

Ok, devils advocate mode = off. But generally that is the argument of the pro-prop 8 side and it is not without some merit I'm afraid to say.

 

Actually Calax you are close but a little off target on what my problem with this is. The SCOTUS absolutely can and should override state courts and state legislatures where violations of the constitution or other federal law is concerned. AGX was correct to point that out (AGX I believe the term you were looking for was The Supremacy Clause). However, if this is not an Equal Protection case and that argument has failed every time it has been tried in favor of gay marriage, and it is not a 14th Amendment case and it is not a Full Faith and Credit case (that has also failed) and it applies ONLY to California then the 9th should have declined to hear the case at all since the 10th Amendment specifically makes this a state issue. Now the SCOUTUS is going to be compelled to rule on something that never should have come before it and not matter what the outcome of their decision is there are going to be some bad side effects.

 

I am very troubled when the very things that safeguard our liberty are bypassed (or must be bypassed) to ensure liberty. If it brings us a good outcome today that's great but don't ever forget that once the precedent is set it can be used to so something terrible to us tomorrow. 

 

@Hurlshot: Great quote, right on point. I like one attributed to Benjamin Franklin "Democracy is two wolves and a sheep voting on what to have for lunch".

[alanschu]

It is not accurate to describe gay folks as a minority. When you get down to brass tacks being gay is only about who-sticks-what-where in the bedroom. If I put you in a room with 100 guys all dressed the same and told you 10 were gay you would not be able to tell me which ones they were. If I put you in that same room and told you 10 were black you

could pick them out in a few seconds. If being gay makes someone a minority then so does scuba diving because scuba divers are scuba divers only because they scuba dive. So if they are not actually a minority they are not entitled to any special protection under the 14th or any other law. After all no one is stopping them from getting married, they are just being stopped from marrying someone of the same gender. Since there IS no Constitutional right to marry there IS no discrimination. Since there is no federal right to marry the 10th  amendment specifically assigns that power to the "people and the states". Right or wrong the people have spoken.

 

I'd consider your definition of minority as being quite narrow.

 

http://en.wikipedia.org/wiki/Minority_group (emphasis mine)

 

A minority group is a sociological category within a demographic. Rather than a relational "social group", as the term would indicate, the term refers to a category that is differentiated and defined by the social majority, that is, those who hold the majority of positions of social power in a society. The differentiation can be based on one or more observable human characteristics, including, for example, ethnicity, race, gender, wealth, health or sexual orientation.

 

Scuba diving isn't a social issue.  However, if the state decided to restrict the rights and privileges of individuals because they are scuba divers, it quickly becomes one if scuba divers mobilize to make it one.  Although the primary difference as to whether or not it gains legitimacy is the degree of choice someone has in the matter.  People don't choose to be gay, so the analogy would probably be more apt along the lines of whether or not someone was, say, left handed instead of right handed.

 

Furthermore, being gay is about a lot more than who sticks what and does what in the bedroom (since a being can still be homosexual and heterosexual even if they never have sex, ever, in their lives).

Edited March 27, 2013 by alanschu

[Calax]

There's also tax implications on the federal level. In Iowa, a gay couple can file as married, because they're legally married. However, in California (who are using the "Separate but Equal" doctrine, I **** you not) you file as "domestic partners". A Domestic Partnership does not have the same tax rate and loopholes as a "married" couple does.

 

That's the thing about Marriage. It's a social/religious institution that's become enshrined in the bureaucracy of the Federal Government in the form of tax loopholes and other economic and legal breaks for a spouse. In California, None of that applies due to the fact that a gay couple is a "domestic partnership". One of my teachers back in Community college who I griped about here (the Sociology teacher who preached about social issues instead of taught) always referred to her husband as her "partner". And when she asked about getting benefits from the school (a state institution) for her "partner", they thought she was referring to a lesbian partner. Had that been true, she would have had to pay extra money because her "partner" was not her "spouse".

 

THAT is the insidious thing about all of this, marriage has become so enshrined in government that laws are built around the fact that you have a ticket saying "married". The minute it's not called a marriage, you've got companies and institutions rules lawyering their way around a variety of things to get more money from the couple because they aren't "married".

[Gorth]

Which brings me back to my favourite position on the subject, get rid of "marriage" as a legal status. It's a religious thing. Let churches handle it in ways that suits them. Get rid of state funding and tax breaks for churches too. If people wants them, they can pay their tithe.

[NOK222]

Which brings me back to my favourite position on the subject, get rid of "marriage" as a legal status. It's a religious thing. Let churches handle it in ways that suits them. Get rid of state funding and tax breaks for churches too. If people wants them, they can pay their tithe.

Truth

[Guard Dog]

Rand Paul actually suggested eliminating the Married filing category for Federal Tax returns. It makes sense in a number of ways because it gets Uncle Sam out of the marriage business and it eliminates the "Marriage Penalty". For those who don't know that is the disparity in personal deductions when filing jointly as a couple rather than two single people filing separately. The single folks get a bigger deduction. Don't know why that is but it's always been that way. I'd say the proposal is a win/win

[Hurlshort]

I agree with all of you that the government should get out of the marriage business, but it doesn't seem to be a serious movement at this time.  In fact some churches are already set up that way, my wife and I have been married for 10 years, but she recently asked if we could get married under the Catholic church.  They have a whole process and it basically like we never married in the first place, and I have to retrieve old baptism records if I want it to be considered a sacramental marriage.  The history behind this whole thing is very interesting, and it has absolutely nothing to do with the Federal or State governments.

 

As for GD and his room full of men, if there were ten Jewish guys I wouldn't be able to tell either, but that doesn't mean Jewish people shouldn't be allowed to marry.  It's also a bit old fashioned to say gay people are making a choice, which you seem to imply.  We've got genetics and simple rationality that say otherwise.  I don't choose to be attracted to women, I just am.  Should gay people be expected to suppress themselves just to fit in with the larger society?  I don't believe so.      

[Guard Dog]

The idea wasn't to imply they are making a choice, that example was to set up the point that they are not actually a minority as defined by the law.

 

But, I don't actually think that way, I was just demonstrating the opposing argument.

[Calax]

The idea wasn't to imply they are making a choice, that example was to set up the point that they are not actually a minority as defined by the law.

 

But, I don't actually think that way, I was just demonstrating the opposing argument.

Neither are Latinos. Seriously, there's a reason why "Latino" is not marked on your census or official forms you have to fill out for the Government. In the 50's and 60's they pursued a "whiteness" strategy where they were getting themselves listed as "White" on all the cenus forms to get around the fact that (at the time) there were only to races "White" and "Black".

 

In fact, if you look at most of the legislation made at the time it was made, it only ever refers to Whites and Blacks. And, for the record, it took until 1971 for women to be recognized as a "minority" group that could not be discriminated against. Personally, I think it would fall under Equal Protections given that they've set the precedent for them to "add" minorities to the list.

 

And GD:

I'm not entirely sure what you're saying got bypassed in this case. And it looks like Prop 8 isn't the only thing currently being heard Windsor v United States is going under the gun tomorrow. It deals with the economic issues I pointed out earlier. 

 

And the Prop 8 fight has the District Court  also saying that Due Process Clause was violated, as well as Equal Protection. Specifically Substantive Due Process.

 

 

Edit: I donno... it seems like all the appellate judges were shrugging at each other about who could actually appeal this. Mainly because the named defendants in the case (Arnie and the AG of CA at the time) refused to defend it. And the California courts ended up allowing another group to file the appeal.

 

The overturn decisions seem to be based on the idea that Marriage, in government terms, is a social construct, and to deny marriage to any couple is to deny the social and economic benefits of that construct. As such, Prop 8 has as much substance to it (beyond "I don't like the gheys!") as the law that brought about the Loving case.

Edited March 27, 2013 by Calax

[Walsingham]

I'd weigh in with an uncharacterictically nuanced view:

 

I accept the notion in a federation of having binding principles - a constitution - without which the federation is meaningless.

 

I am increasingly in favour of getting government with its mindless inertia, blind indifference, and rending energy out of most every day things

 

I accept the notion of constraining 'ze natural urges'. To an extent it's dependent on context. But some things are just evil.*

 

A balance should be struck with how much self control can be exerted, and the degree of evil. Small evil with high self control, like my burping, is to be excused in minor exceptions. Big evil, low self control like child molestation is not.

 

If I were gay, as (I'm fairly sure) I'm straight I would be utterly incapable of not being gay. Forcing me to be otherwise would at best divert huge personal effort from other important issues like not talking in movie theatres. At worst my braincase would break apart  like an old lady's knees. Seem like a no-brainer to me.

 

In closing: Alan Turing.

 

 

 

 

*Persons disagreeing will be introduced immediately to people I consider evil. In person. And left alone with them.

[Amentep]

At worst my braincase would break apart like an old lady's knees. Seem like a no-brainer to me.

 

Doesn't the second pretty much follow from the first?

[Walsingham]

 

At worst my braincase would break apart like an old lady's knees. Seem like a no-brainer to me.

 

Doesn't the second pretty much follow from the first?