quote:Originally posted by Lyrhawn: My understanding is that it would vacate only the federal court ruling below it, not the district court below that.
Right, which means Prop 8 would be still gone. No standing = no Prop 8. They'd have to bring a new challenge to the ruling from some other party with standing to appeal.
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posted
The manner in which it reached them was that california didn't even want to defend their own law because they already disagreed with it. But never one to be hesitant when faced with the opportunity to bravely champion doomed bigotry, fiscally responsible state republicans fronted millions of dollars in monies to defend prop 8 in court, and their attempt to do so in court was so painfully bad that every finding of fact went against them in court so
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quote:JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.
MR. COOPER: Yes, Your Honor.
JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.
MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn--
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional --
(Laughter.)
JUSTICE KAGAN: No, really, because if the couple -- I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
posted
It is rather satisfying to hear arguments I have been making for 30mumble years coming from Supreme Court Justices.
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posted
Meh. Read the full transcript. You'll hear 30 year old arguments against SSM coming out of some of those supreme court justices' mouths.
Having read it in full, I did not come away with an overall good feeling.
Edit: And the tap-dancing the Solicitor General had to do for the administration's position was downright painful.
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posted
I don't really expect to hear anything good from some of the justices. Or anything at all from Justice Thomas.
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quote:Originally posted by Samprimary: The manner in which it reached them was that california didn't even want to defend their own law because they already disagreed with it. But never one to be hesitant when faced with the opportunity to bravely champion doomed bigotry, fiscally responsible state republicans fronted millions of dollars in monies to defend prop 8 in court, and their attempt to do so in court was so painfully bad that every finding of fact went against them in court so
That's not what I am talking about. And there are some serious legal problems with striking down DOMA *and* striking down Prop 8. If you strike down DOMA and say it's because marriage is a state issue not a federal one, and the federal government had no business passing DOMA then that creates problems for saying Prop 8 is unconstitutional because a state government passed it.
Look, I'm with you on both these issues. But SCOTUS can't just say, "Zap to DOMA and Zap to Prop 8." They have to create a legal framework for nixing one without making it a legal gymnastics act to nix the other.
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posted
There is no such conflict here BB. While both deal with constitutional interpretation of equal protection under the law (specifically gays as a protected class), the decisions may easily compliment each other. For example, the striking of prop 8 could set a narrow precedent for overturning constitutional changes by states, but a broad one for protection of gays as a protected class. Then that precedent could all but decide the DOMA decision. They both deal with the same area of the constitution, but their differences as to state or federal law will have less bearing than you think.
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quote: If you strike down DOMA and say it's because marriage is a state issue not a federal one, and the federal government had no business passing DOMA then that creates problems for saying Prop 8 is unconstitutional because a state government passed it.
I think this all needs significant review on your end, because nothing I'm reading here seems true to me. Prop 8 wasn't invalidated "because a state government passed it" — it was overturned based on the due process and equal protection clauses of the Fourteenth Amendment. In a way which I am pretty sure could be applied equally to a federal law ...
...like DOMA. Which likewise was not ruled unconstitutional "because marriage is a state issue not a federal one." It wasn't ruled unconstitutional based on some idea that it was a power that should remain with the states, it was ruled unconstitutional because of the equal protection guarantees of the Fifth Amendment.
Scotus does not have to create a legal framework for nixing those two based on the rulings you have ascribed to them, because what you described has nothing to do with why both laws were ruled unconstitutional.
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posted
That's fine it doesn't seem true to you. It's what understood the problem to be, and it's what newspapers have been warning against.
I'll wait until the decision is handed down. I'd rather just sit tight and wait for that than discuss the stuff going in.
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posted
Sam: This article from the SCOTUS blog outlines what I was concerned with.
If DOMA is unconstitutional because it's the federal government using a power reserved for the states, then it becomes hard to argue that California does not have the right to pass Prop 8.
It's not impossible of course, and I think both pieces of legislation will end up in the dustbin, but you have to arrive there with a clear precedent that won't scuff up other things down the road.
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quote:JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
Wow, how stupid can Mr Cooper be? I'm completely in favour of same-sex marriage, but the proper answer to this is and should have been "Yes, of course the states are constitutionally entitled to limit the institution of marriage according to age, or fertility."
Where does it say in the US Consitution that there can't be barriers to marriage according to age or fertility in state law?
Same as liberals, it seems that conservatives just consider "what is in the Constitution" and "what we would like to be in the Constitution" as being one and the same.
And as a sidenote, I'm all in favour of states' rights on this issue. Some states should be allowed to not recognize marriage at all -- others to recognize only hetero fertile marriage, others to recognize polygamous marriage, etc, etc.
As such it's my opinion that DOMA should be struck down, and that states rights should be allowed to continue.
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quote:And as a sidenote, I'm all in favour of states' rights on this issue. Some states should be allowed to not recognize marriage at all -- others to recognize only hetero fertile marriage, others to recognize polygamous marriage, etc, etc.
considering that this creates a system of effective inequality in the united states against a class which has to be granted strict scrutiny, how is this standpoint a good one that should be perpetuated?
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quote:considering that this creates a system of effective inequality in the united states against a class which has to be granted strict scrutiny,
I believe that the standards of strict scrutiny is that the class's characteristics "must have little relationship to the government's policy aims or the ability of the group's members to contribute to society"
If the state government policy for the purpose of marriage is *explicitly* its desire to encourage procreation, then old age and homosexuality become relevant characteristics, as they pertain to fertility -- and thus pass the "strict scrutiny" criterion.
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posted
So according to you it would be constitutional for a state government to refuse to grant marriage licenses to infertile couples? That the federal government should have no recourse if a state decides to do this? Because you've just entered a realm that not even Cooper would tread.
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quote:So according to you it would be constitutional for a state government to refuse to grant marriage licenses to infertile couples?
Yes, I just said that in a couple posts above: "Some states should be allowed to not recognize marriage at all -- others to recognize only hetero fertile marriage"
quote:That the federal government should have no recourse if a state decides to do this?
Yes.
quote:Because you've just entered a realm that not even Cooper would tread.
I believe in states's rights more than Cooper (or conservatives) do, that's both obvious and unsurprising to me.
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posted
You believe in states' rights more than the constitution does. No such law would fail to be struck down as unconstitutional by any SCOTUS in living memory. Due process and equal protection clauses alone render it starkly unconstitutional.
The same process for saying that it can pass strict scrutiny (as described here) could be used to say that a state can ignore the ADA, the Civil Rights Act, and the federal government should have no power to act against that.
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quote:You believe in states' rights more than the constitution does.
You assert this but you don't explain how it's so.
Can you explain to me what specifically would make "denying marriage licences to infertile couples" unconstitutional, while somehow "denying marriage licences to first cousins" isn't?
quote:No such law would fail to be struck down as unconstitutional by any SCOTUS in living memory.
When has SCOTUS *ever* made a decision which would be opposed by both major political parties?
So, yeah, they wouldn't ever allow as many state rights as the Constitution demands, because both major political parties in the U.S. would abhor that.
But something isn't automatically made right simply because both Democrats and Republicans agree to it, nor is it automatically made wrong because they both oppose it.
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quote:Originally posted by Aris Katsaris: Can you explain to me what specifically would make "denying marriage licences to infertile couples" unconstitutional, while somehow "denying marriage licences to first cousins" isn't?
Like, you want an actual legal explanation of why one is a matter under the law, and the other is not? Because there is one.
Infertile couples, let's say, the fact of one's infertility, is a status which receives equal protection under the law. So you can't make laws regarding infertile people in general, except where you specifically elucidate their special protections under the law.
Whereas, laws regarding marriages to relatives fall outside of equal protection statutes: that is, the laws in question do not pertain to classes of people in any applicable sense: there is no segment of society that are cousins, and even though there are people who are and aren't cousins, the law does not pertain to the legal protection of a class of people, but to an act. It is within the accepted power of the state, in broad terms, to legislate acts such as marriage according to social standards: Ie: legal age of marriageability, laws against incestuous marriage, etc. These laws do not subject any class to unequal protection.
So it is not unconstitutional, at least under the equal protection statute, to make marriage of cousins illegal, because it is a law which can be applied to everyone, with equal effect. The argument about gay marriage laws, particularly DOMA, is that they *cannot* be applied equally, because gays are in fact a class of people, who do not make the choice, therefore the law applies unfairly to them, and not only to an act in general. This is similar to anti-miscegenation laws which have been repealed: the recognition of a protected class, that is a class of people recognized by law and therefore entitled to the equal protection of the law, cannot be given an institution which is separate but equal. There can be no "black marriage" and "white marriage," there can be only marriage. Now we are seeing the legal framework falling into place for the recognition of gays as a protected class (don't be alarmed: as a white male, I am also a protected class- protected classes are numerous and plural), and therefore an attempt to establish a separate class of legal protections for them is unconstitutional- their legal needs and rights must be met within the legal framework applied to all citizens. Ie: Gay marriage must be the same thing as straight marriage.
I have a feeling you were being facetious in asking, but there is an actual legitimate answer the question, and you've just been given it. I hope you don't ignore it.
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posted
The question was legitimate, and thanks for the answer; though I'm not certain that your interpretation of the US constitution is correct, I don't proclaim myself a scholar in this respect.
I'll just add as a note that this all seems too crazy arbitrary for me. e.g. that gays "do not make the choice" (to be gay) is supposedly relevant? Does that mean that if in the future, there were different pills that people could take to make them straight, gay or bisexual, that would by itself potentially change the constitutionality of banning same-sex marriage?
I suppose that explains all the fuss Americans make about whether gay people "choose" to be gay or not, which has always been an utterly uninteresting question to me as I never saw any reason to care.
Any way this is rather an academic question for me -- I support same-sex marriage not because of constitutional principles but because I believe it'll be good for society. I likewise would support federalism in this (and many other issues) not because of constitutional principles, but because I believe federalism is a good policy. If I'm wrong on what the US Constitution says, fine, I'd be all in favour of it being rewritten. :-)
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quote:Originally posted by Aris Katsaris: I'll just add as a note that this all seems too crazy arbitrary for me. e.g. that gays "do not make the choice" (to be gay) is supposedly relevant? Does that mean that if in the future, there were different pills that people could take to make them straight, gay or bisexual, that would by itself potentially change the constitutionality of banning same-sex marriage?
No, in the same sense that the ability to change someone's skin color could endanger the equal protection of black people.
The hubub about being gay being natural is that homosexuality as a legally recognized status is important to the application of the law, particularly the equal protection clause (14th Amendment).
If you legally recognize a person as a part of a protected class (gender, race, age, etc), then you must also strike down any law that attempts to limit their equal access to federal institutions, including marriage.
quote: Any way this is rather an academic question for me -- I support same-sex marriage not because of constitutional principles but because I believe it'll be good for society.
I would interject that the purpose of the constitution is to establish a legal framework for the good of society, and the proper, effective functioning of the state, and to curtail attempts by the few, or the many, to impinge upon human dignity. In that respect, you ought to consider the constitutional principles involved as being important.
We do not simply do what would be good. We must determine how and why what we do is *right*.
quote: I likewise would support federalism in this (and many other issues) not because of constitutional principles, but because I believe federalism is a good policy. If I'm wrong on what the US Constitution says, fine, I'd be all in favour of it being rewritten. :-)
I would suggest that you do some more studying. That is all that I will suggest.
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posted
Aris, here is a list of past court decisions in which the Supreme Court has affirmed that marriage is a right. Reading the opinions might provide more insight into why new restrictions on marriage (e.g. based on age) might be unconstitutional.
Also note that strict scrutiny would need to demonstrate a compelling government interest that is furthered by the discrimination, rather than the lack of furthering a government interest by extending access to a legal institution to additional people. Even if marriage is centrally about procreation, then, there'd have to be a compelling government interest served by excluding people from it (since it has been found to be a right guaranteed by the constitution).
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posted
I see that such affirmations would also make it impossible for a state to decide that it wouldn't recognize *any* marriages. I find this unfortunate.
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posted
aris, here's a good example of a question to ask of the people trying to uphold prop 8, or the right of states to do this.
i'll ask you.
Outside of the marriage context, can you think of any other rational basis for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?
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quote:Originally posted by Samprimary: aris, here's a good example of a question to ask of the people trying to uphold prop 8, or the right of states to do this.
i'll ask you.
Outside of the marriage context, can you think of any other rational basis for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?
Nothing that currently crosses my mind. But, after all, I don't think there exists much of a rational basis for the states to deny gay couples marriage rights either (hence my support for SSM). But that's *my* opinion, in a democracy it's the public's opinion that should matter; with the exception of the guarantees of free speech, due process, etc, which are necessary for a free society and the preservation of freedom and democracy altogether.
And assuming one allows federalism as a concept at *all*, family law would seem to me an issue that (unlike e.g. foreign policy or common defense) would properly belong at the state level.
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quote:And assuming one allows federalism as a concept at *all*, family law would seem to me an issue that (unlike e.g. foreign policy or common defense) would properly belong at the state level.
If that were true, and we're voiding strict scrutiny classes, that means it is "properly at the state level" to determine whether to keep anti-miscegenation laws or to deny adoption rights to colored folk, as states have done.
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Blayne Bradley
unregistered
posted
Aris what about test tube babies or other genetic fiddling to create an embryo that can be carried by lesbian couples? Or Male couples to use a proxy womb?
Do you also believe it is within states rights to prevent black people from voting? If not, what's the difference?
Personally I am in favor of States not being able to easily trample human dignity at its legislative whim.
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quote:Originally posted by BlackBlade: Sam: This article from the SCOTUS blog outlines what I was concerned with.
If DOMA is unconstitutional because it's the federal government using a power reserved for the states, then it becomes hard to argue that California does not have the right to pass Prop 8.
That's silly, frankly. The grounds for overturning Prop 8 are not related to State's Rights. There is very clear precident for the Scotus overturning a state constitution. It's not legislating to overturn a State's constitution, it's a legal decision. It's erasing legislation- something the court is within its power to do on constitutional grounds.
There is a classic hierarchy of rights involved here: individual rights trump those of the states. The federal government only has the power to interfere with the laws of a state (such as the right to change its constitution in a certain way), if those laws attempt to a) interfere with the federal government's constitutional powers, or b) interfere with the constitutional rights of individuals.
This has broad and narrow meanings. In broad terms it means that Federal law trumps state law in most cases, which follows mainly from the federal government's right to enact "appropriate legislation." In narrow terms, it means that the states cannot specifically legislate against those powers of the federal government which are recognized as paramount, nor against the rights of individuals as protected in the constitution.
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posted
So if Bob and Bill go to New Zealand and get married, does it have to be recognized by the US as a legal marriage? Would not recognizing it violate some treaties? If Linda and Lois are from New Zealand and get married, but come to the US to work, would they have to be recognized?
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quote:Originally posted by Darth_Mauve: So if Bob and Bill go to New Zealand and get married, does it have to be recognized by the US as a legal marriage? Would not recognizing it violate some treaties? If Linda and Lois are from New Zealand and get married, but come to the US to work, would they have to be recognized?
Oh the questions...
When we have nationwide same-sex marriage, these issues won't be issues (at least in the U.S.). Let's cross our fingers SCOTUS wipes all gay marriage bans. If they don't, if they kill DOMA but leave marriage decisions to individual states, as several legal pundits expect, then questions like Darth Mauve's will exponentiate.
Imagine: a married same-sex couple in a state where it is legal is receiving federal marriage benefits, then their employment requires a move to a state where it's not legal so they suddenly become unmarried in their new home *and* lose their federal marriage benefits. Another scenario: Ani, an Armenian studying at grad school in WA state, where she meets and marries Suzy. Because they are legally married, Ani is now free to remain in the U.S. Later Suzy decides to take over the family business in GA, but after they move Ani get's deported since in GA they are no longer officially married.
quote:Originally posted by Darth_Mauve: So if Bob and Bill go to New Zealand and get married, does it have to be recognized by the US as a legal marriage? Would not recognizing it violate some treaties? If Linda and Lois are from New Zealand and get married, but come to the US to work, would they have to be recognized?
Oh the questions...
When we have nationwide same-sex marriage, these issues won't be issues (at least in the U.S.). Let's cross our fingers SCOTUS wipes all gay marriage bans. If they don't, if they kill DOMA but leave marriage decisions to individual states, as several legal pundits expect, then questions like Darth Mauve's will exponentiate.
Imagine: a married same-sex couple in a state where it is legal is receiving federal marriage benefits, then their employment requires a move to a state where it's not legal so they suddenly become unmarried in their new home *and* lose their federal marriage benefits. Another scenario: Ani, an Armenian studying at grad school in WA state, where she meets and marries Suzy. Because they are legally married, Ani is now free to remain in the U.S. Later Suzy decides to take over the family business in GA, but after they move Ani get's deported since in GA they are no longer officially married.
It's gonna be a real mess.
So I'm probably remembering something wrong but I was under the impression that a marriage say from California would have to be recognized in any other state. I can't remember any specifics unfortunately or even from where I heard it. (My high school gov't debate class seems to be the source but I can't remember for sure). Is there anyone who could shed light on that?
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posted
No state has to recognize another state's marriages. One would think under Full Faith and Credit all states would recognize marriage from every other state. Alas. When Hawaii first intimated it might approve gay marriage in the 90's, DOMA was enacted.
Section 2 of DOMA reads:
quote:Section 2. Powers reserved to the states No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 2 is not currently being challenged at SCOTUS.
Section 3 is before the Court now, and it seems likely the Justices will strike that provision down.
quote:Section 3. Definition of marriage In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
posted
As far as Ani and Suzy's example, since deportation is under the auspices of the INS, which is a Federal agency, the state of Georgia would not have any say in the matter. If Windsor v. U.S. results in Section 3 being struck down, Ani should have no fear of deportation, regardless of what state she and Suzy reside in, yes?
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quote:Officials of the Boy Scouts of America said Friday that they propose ending their ban on openly gay scouts but continuing to bar gay adults from serving as leaders. The decision, which follows years of heated controversy within the organization and growing outside criticism, must be approved by the roughly 1,400 voting members of the Scouts’ National Council at a meeting in Texas the week of May 20.
posted
I had a question about the Gay Scout thing.
Criminals are not allowed to be Scouts. If you go to jail, you are kicked out.
When you turn 18, you leave scouting (accept for the older "Adventure Scouts" which is not a large group.)
It is illegal for you to have sex before age 18, no matter what gender you partner with.
So how can you ever have a Gay scout? You can have a scout with a sexual preference for males, but if they have not consummated that preference, they have not really been gay.
On the other hand the only way to prove you are a straight scout is to have sex with a female, and that is breaking the law so you would get kicked out.
Wouldn't it be more prudent to have a ban on any sex for boy scouts?
Similarly, the fear they have that gay leaders would "take advantage" of the scouts in their protection. Well, I don't care if you are a man or a woman, you break the law if you have sex with children under 18, and you do go to jail. As such, all sex with scouts is the law, gay-straight-or anything in between.
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quote: Each U.S. state (and the District of Columbia) has its own age of consent. Currently state laws set the age of consent at 16, 17 or 18. The most common age is 16.[46]
age of consent 16 (30): Alabama, Alaska, Arkansas, Connecticut, District of Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Vermont, Washington, West Virginia
age of consent 17 (9): Colorado, Illinois, Louisiana, Missouri, Nebraska, New Mexico, New York, Texas, Wyoming
age of consent 18 (12): Arizona, California, Delaware, Florida, Idaho, North Dakota, Oregon, Tennessee, Utah, Virginia, Wisconsin, Pennsylvania[47]
posted
That would make people who are having sex with someone under the age of consent criminals. Not the underage person.
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quote:Originally posted by kmbboots: That would make people who are having sex with someone under the age of consent criminals. Not the underage person.
So if they're having sex with a peer, they're both criminals.
And if they have sex with someone who is not below the age of consent, then they are no longer a criminal, but they are now the victim of a crime. And their partner is a criminal.
There's no way for them to (legally) just plain have sex and not have it be a catastrophe.
Many states have clauses that mitigate this problem, but I don't think they all do.
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quote:Originally posted by kmbboots: Dan, the age of consent laws are more complicated than that. Being the victim of a crime would not preclude boy scout membership.
Oh, yeah, agreed. Sorry, I think I may have missed some of the context, actually. I wasn't saying it would preclude boy scout membership, so much as just saying it's still a messed up situation under the law.
quote:Originally posted by kmbboots: It is possible that Darth_Mauve was making a joke and I am ruining the funny.
I don't think it ruins it! Critical analysis is fun on its own merits! Posts: 3580 | Registered: Aug 2005
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