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Supreme Court justices raise doubts on California marriage case

(Reuters) - Two members of the Supreme Court, both viewed as potential swing votes on the right of gay couples to marry, raised doubts about California's gay marriage ban on Tuesday as they questioned a lawyer defending the ban.

During the first half of oral argument, Chief Justice John Roberts pressed lawyer Charles Cooper on whether Cooper's clients had a legal right to appeal in federal court in favor of California's Proposition 8.

"I don't think we've ever allowed anything like that," Roberts said. If the clients lack that right, the Supreme Court may not reach the central question of gay marriage rights.

Justice Anthony Kennedy used one of his questions to focus on the "imminent legal injury" facing 40,000 California children being raised by gay and lesbian couples. "They want their parents to have full recognition and full status," he said.

by Anonymousreply 8703/27/2013

Aargh! Our lawyers are totally blowing it! It's not "gay" marriage, it's simply marriage equity!

by Anonymousreply 103/26/2013

It seems like Prop 8 will be overturned, allowing gays to marry again in California. However, this could really hurt our chances of getting legalized same-sex marriage nationally.

by Anonymousreply 203/26/2013

NBC is reporting an expected low ruling. Basically saying the pro prop 8 people had no standing.

by Anonymousreply 303/26/2013

[quote] Our lawyers are totally blowing it!

How? Are you listening? Because I don't see anything at the link to suggest they're playing it as only a gay issue. Just wondering why you think it's going badly.

by Anonymousreply 403/26/2013

Not a big surprise, R3.

R2, I don't believe the SCOTUS is going to legalize marriage-equality on a national level, much as I would like that. It's going to wind up being left to the states.

Which means marriage equality will exist in some places only. Despite all the rhetoric about "momentum" around this issue, that's only true in some states. Others will NEVER embrace marriage equality willingly, any more than they would have eventually embraced desegregation, inter-racial marriage, and pro-choice legislation.

by Anonymousreply 503/26/2013

[quote]Which means marriage equality will exist in some places only.

It's not marriage equality unless the marriage is recognized by the FEDERAL government. Marriage without all the federal benefits is not equal.

by Anonymousreply 603/26/2013

The audio is up:

by Anonymousreply 703/26/2013

So they're not dealing with DOMA?

by Anonymousreply 803/26/2013

DOMA is a separate case. Oral arguments will be heard on that case Wednesday.

by Anonymousreply 903/26/2013

Is it possible their decision on DOMA will have the more sweeping steps forward in gay rights that I long for?

by Anonymousreply 1003/26/2013

Listening to The Supremes.

No, not Diane, Mary, and Flo - but, Kaden, Ginsberg, and Sotomayor.

And I'm a fan.

by Anonymousreply 1103/26/2013

Not according to this, R10:

[quote] WASHINGTON -- Supreme Court justices signaled on Tuesday that they are reluctant to embrace a broad ruling finding a fundamental right to marriage for gays and lesbians across the United States.

by Anonymousreply 1203/26/2013

I'm fearing we will lose again. :(

by Anonymousreply 1303/26/2013

But doesn't DOMA force their hand?

(to make a broader decision on this issue)?

by Anonymousreply 1403/26/2013

I am not optimistic, not with this court.

by Anonymousreply 1503/26/2013

I also think our lawyers are fucking up. :(

by Anonymousreply 1603/26/2013

This author knows the Justices pretty well. Perceives small positive steps, with time to allow social views to develop further and - on the down side - a window that allows re-visitation by other conservatives.

Best scenario according to him, the case is dismissed and the Ninth Circuit's decision prevails. But federal upheaval is unlikely (damn you Justice Kennedy!)

by Anonymousreply 1703/26/2013

Everyone talks like it's all about Kennedy, but I think we have Roberts on our side.

by Anonymousreply 1803/26/2013

Yes, yes, but what about DOMA tomorrow?

I get that today, Prop 8, it's likely they will punt it back to being a state issue.

But DOMA is about the federal government. So their decisions tomorrow could be more important than today, right?

by Anonymousreply 1903/26/2013

Decisions in June, people. Oral arguments today and tomorrow.

Calm down.

The SCOTUS may rule narrowly, but there is really no way for them to reverse momentum or harm the cause of gay marriage. You'll have to trust me on this. Even a narrow ruling is a victory for us.

by Anonymousreply 2003/26/2013

According to all reports I've seen today, the SC is NOT likely to rule on gay marriage on a federal level. This is bad news because it means we'll have to wait many more years before same-sex marriage is legal in this country.

So, for now, gays will remain second-class citizens in this country. But don't forget to pay your federal income taxes by April 15.

by Anonymousreply 2103/26/2013

So they haven't decided to take up DOMA yet?!

by Anonymousreply 2203/26/2013

Talking about disseminating false information and panic, R16!

On the contrary, any analysis I have read states that pro-Proposition 8 lawyer Cooper was torn apart.

What happened today has been positive for gay rights as-so-far.

by Anonymousreply 2303/26/2013

John Roberts has gay face

by Anonymousreply 2403/26/2013

A set of decisions that 1) let stand the lower-court CA decisions (thus overturning Prop. 8), and 2) eviscerated DOMA by taking away the Feds' ability to discriminate in doling out benefits, would be a substantial victory for us.

With California and New York in our camp, a very large fraction of the USA (and an even larger fraction of gays) would be able to marry, and the trend toward state laws favoring same-sex marriage would seem to become inevitable.

And with the Federal benefits issue settled in our favor, DOMA in general would swiftly unravel.

We'll see how it goes tomorrow, but I think we have substantial grounds to be optimistic.

by Anonymousreply 2503/26/2013

i love the way you think r25.

by Anonymousreply 2603/26/2013

I like what r25 has to say and can only be hopeful.

by Anonymousreply 2703/26/2013

[quote]This is bad news because it means we'll have to wait many more years before same-sex marriage is legal in this country.

A probable outcome is that marriage equality will be recognized in CA and the federal government will recognize legally wed gay couples.

The dominoes will start to fall fairly quickly, especially when Republicans are spit-roasted on the issue.

The final blow will be a couple who moves from a marriage equality state to a non-equality state and sues for equal treatment under the law.

All that will be just a few years in the future, not many years.

by Anonymousreply 2803/26/2013

[quote]This is bad news because it means we'll have to wait many more years before same-sex marriage is legal in this country.

SSM is already legal in this country in 9 states and DC. Knocking down Prop 8 for lack of standing (which seems the likeliest course of action) is hardly bad news for our side. Other states will follow until all that are left banning it will be the former slave-and-segregation states. Another SCOTUS decision in about 10-15 years will bring them into line.

You heard it here first.

There are a lot of Negative Nancies and Nervous Nellies on this site.

Cheer UP, Cassandra. This is a great day for us.

by Anonymousreply 2903/26/2013

It is quite possible the Supreme Court will do exactly what R25 suggests. In fact, one could think that smart money is on it. Kicking standing out from under the CA group would de facto bring marriage rights back. And the federal question is a second step (opening the military was the first) in establishing a national framework for equal rights.

But the Court is aware the of the historic nature of the questions. If they decide that momentum is truly moving things towards an inevitable consensus, Kennedy and perhaps Roberts could take a stronger stand. I don't think they'd want something so fundamental to hinge on a 5/4 vote, but if that's all they needed to put Bush in the White House, perhaps the other side will determine 5 votes are enough.

It is hard to see that, without the hands-in-the-air-there's-nothing-else-we-can-do-but-yield basis for federal-level granting of our rights that either Roberts or Kennedy would take a stand so opposed to state's rights to decide the issue legislatively. And, again, without the CA standing issue taken care of, they don't have room to wiggle, barring a declaration by fiat. Which would be fine with me.

by Anonymousreply 3003/26/2013

R22, they have accepted the DOMA case & have set oral argument in that case for tomorrow (Wed, March 27).

Decisions in both the DOMA case & the Calif. Prop 8 case are due to be issued in June of this year.

by Anonymousreply 3103/26/2013

[quote]There are a lot of Negative Nancies and Nervous Nellies on this site.

This.

by Anonymousreply 3203/26/2013

The Supreme Court could have declined to take up this case and it would have just upheld the 9th circuit ruling and granted marriage to CA. Even Scalia of all people made that point.

The fact that they didn't indicates to me that at least they are strongly considering giving this case a real ruling and not just throwing it out for lack of standing.

The problem is even the liberal side of the court seems cautious about how far it could go. That is evident with the many questions they asked about how illogical it seems to enforce marriage equality in states that are trying to give gay rights...where keeping it held from them in states that currently do the least which is argument the government makes.

Reading their ruling on this is going to be quite interesting.

by Anonymousreply 3303/26/2013

[bold] Supreme Court hints that it won't issue sweeping ruling on same-sex marriage [/bold]

In a historic oral argument on a challenge to state laws that limit marriage to heterosexual couples, the Supreme Court indicated Tuesday that it might not strike down such laws.

The justice whom many observers view as the swing vote in the case, Justice Anthony Kennedy, voiced worry at one point during the argument that proponents of same-sex marriages were asking the court to issue a decision that would “go into uncharted waters.”

After the oral argument, Pete Williams of NBC News reported that it seemed “quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.

Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”

At issue Tuesday was California’s Proposition 8, the state constitutional amendment enacted by voters in 2008 that limits marriage to one man-one woman couples. Those seeking to have the court strike down Proposition 8 argue that the Equal Protection Clause of the Fourteenth Amendment includes a right for same-sex couples to marry.

Williams said that both the liberal and the conservative justices seemed wary of issuing a decision that would apply to any state outside of California.

(More at link)

by Anonymousreply 3403/26/2013

"But don't forget to pay your federal income taxes by April 15."

So? Baghdad needs new roads! Freedom isn't free!

by Anonymousreply 3503/26/2013

While there will be lots of legal analysis coming out that will be interesting to read...it is important not to put too much stock into it.

Guessing how the judges will rule based on the questions they ask is usually fairly inaccurate, everyone expected the healthcare law to get overturned most recently and we saw how that turned out.

I do think there is some truth that on a personal level, the justices might not be ready to make a sweeping ruling in this case. Though really that just causes of a delay of about 3 years when this case is inevitably going to be before them again and I am sure they realize this and might not see the point in waiting a couple more years.

by Anonymousreply 3603/26/2013

You can't always tell how they will decide based on the questions asked. Sometimes they play devil's advocate with the questions just to see how far the logic goes.

by Anonymousreply 3703/26/2013

[quote]Supreme Court hints that it won't issue sweeping ruling on same-sex marriage

And EVERYONE predicted they would strike down Obamacare and they didn't.

by Anonymousreply 3803/26/2013

[quote]The Supreme Court could have declined to take up this case and it would have just upheld the 9th circuit ruling and granted marriage to CA. Even Scalia of all people made that point.

[quote]The fact that they didn't indicates to me that at least they are strongly considering giving this case a real ruling and not just throwing it out for lack of standing.

I agree, R33. Yet I really don't think they're prepared to make any ruling that would have national/federal application. Which leads to the puzzling question: why accept the case in the first place? Do the facts of this particular standing issue make it one that compels a decision for future use? Surely not -- these same convoluted facts are unlikely to ever arise again elsewhere.

Maybe they just granted cert in order to keep the door open for whatever developments might occur, & buy time to argue among themselves. Every aspect of this case is so unique that there's not much point in using it to advance the cause for either side, since whatever happens next somewhere else is bound to be readily distinguishable.

It does seem more likely than not that Prop 8 is going to stay overturned in Calif, on whatever basis they choose for their ruling. Outside of Calif, the importance of the decision will lie in any nuances between the lines.

by Anonymousreply 3903/26/2013

R13/R16, you couldn't find a a better pair of attorneys to argue this. Ted Olsen's conservative credentials are solid gold and for him to be pursuing this so ardently has to make the rightwingers on the court take this matter more seriously. That said, this is a huge social issue that has benefited from rapid change in public perception, so the public may be ahead of the court on supporting it.

The Court elected George Bush in 2000 and upheld the Affordable Care Act last year. The current court is seen as very political and may want to take a lower profile. If they can deny standing in this case to the Prop 8 sponsors, they may do so.

by Anonymousreply 4003/26/2013

I love how some of you are soooooo happy to get crumbs from the entire American pie. As if gay Americans should be thankful and oh so hopeful because Ca might get civil rights. Be happy for baby steps.

What a bunch of shit!

Equal rights for all means EVERYONE!!!!

by Anonymousreply 4103/26/2013

DOMA i think is the bigger issue. The court doesn't want to make a broad ruling fine, but if they strick down DOMA people can move to a state and get the same rights as everyone else.

People are asking why they took the Prop 8 case well it only take 4 judges to accept the case and im sure the conservative justices didn't want to see Prop 8 go down that easily.

by Anonymousreply 4203/26/2013

I still can't put it past the Mormons to have something else up their sleeve (payola, blackmail) and I hope they havent somehow influenced the Court to take the Prop 8 case in order to uphold it.

by Anonymousreply 4303/26/2013

Is California a state where non-gay people PRETEND to love gays, but they're all secretly disgusted by them outside of "trendiness"?

by Anonymousreply 4403/26/2013

[quote]So they're not dealing with DOMA?

THIS is why it's so difficult. No gay person should be asking this. They should have known the answer weeks ago.

by Anonymousreply 4503/26/2013

[quote]A probable outcome is that marriage equality will be recognized in CA and the federal government will recognize legally wed gay couples.

Not true. Gay couples in CA would not get FEDERAL marriage benefits even if Prop 8 is overturned. And their marriage would not be recognized if they moved to a state that didn't allow same-sex marriage.

by Anonymousreply 4603/26/2013

[quote]The final blow will be a couple who moves from a marriage equality state to a non-equality state and sues for equal treatment under the law.

It's the married same-sex couples in the military who will sue for equal treatment before there's a need for a couple who moves to a non-equality state. The best part is, the DoD is already recognizing same-sex military spouses.

Doesn't the State Dept. also recognize same-sex spouses?

The Department of Justice no longer upholds DOMA. If those departments of the Federal government see DOMA as being unconstitutional, how can the Supreme Court not agree to strike down DOMA?

by Anonymousreply 4703/26/2013

r46 - I think the poster you're responding (r28) to meant that Prop 8 will be recognized in CA, probably because the petitioners don't have standing and that DOMA will be ruled unconstitutional.

[quote]And their marriage would not be recognized if they moved to a state that didn't allow same-sex marriage.

r28 said: [quote]The final blow will be a couple who moves from a marriage equality state to a non-equality state and sues for equal treatment under the law.

And that's a few years away. There needs to be a case before the court for them to rule on that.

by Anonymousreply 4803/26/2013

Slow down, r46. Take a breath. Think.

That poster is obviously saying that the likely outcome is Prop 8 narrowly overturned, DOMA section 3 overturned. His scenario describes what the situation would be if the court ruled that way, and this potentiality has similarly been widely noted in many places and by many observers.

by Anonymousreply 4903/26/2013

R49, Justice Kennedy made it clear today that he is not yet willing to legalize same-sex marriage at the federal level. We'll get more clarity tomorrow, but, for now, it doesn't look like it's going to happen anytime soon. Let's not candy-coat this.

Jonathan Capeheart said today that it will take decades before we see same-sex marriage recognized in all 50 states if they don't overturn DOMA in June.

by Anonymousreply 5003/26/2013

You seem slightly confused R49. Whether or not Kennedy would be willing to be a part of a national ruling on same sex marriage has nothing to do with if the federal government could recognize them.

Right now the federal government can't recognize any same sex union because of DOMA which is a huge hassle to couples. However the vast majority of legal analysts expect DOMA to be overturned. That is a different decision than ruling on same-sex marriage.

by Anonymousreply 5103/26/2013

Meant to refer to R50

by Anonymousreply 5203/26/2013

R51, you're the one who seems confused. Kennedy is the swing vote on the court. If he doesn't vote to overturn DOMA, then it probably won't be overturned. If DOMA isn't overturned, then the federal government will not recognize same-sex marriages in any state.

by Anonymousreply 5303/26/2013

I think what Justice Kennedy and others may be uncomfortable with is that usually when the Supreme Court finds there is a federal constitutional right, it has the laws of at least the majority of states already in support of that proposition, such as when it said interracial marriage cannot be banned or when it outlawed juvenile execution or when it outlawed sodomy laws. Usually, they can say, "see, most states agree with us already." But, the Court is very hesitant to say something is a constitutional right when only nine states allow that practice. It does not want to overreach and make the overwhelming majority (41) of states do something against their will. Kennedy is winking to gay rights advocates and saying, "go get same-sex marriage passed in the majority of states" and then you can come back to us and reasonably declare it is a national constitutional right.

by Anonymousreply 5403/26/2013

[quote]Kennedy is winking

So is Obama

by Anonymousreply 5503/26/2013

I'm confused here. If DOMA falls, then can the federal government define 2 statues for LGBT. One married in a state that recognized marriage equality and therefore federal benefits and one status where married but in a state that does not? Does not seem logical. State that does not recognize marriage equality would only effect State benefits or state law, not federal.

Therefore, if you get married in Maryland and move to West Virginia, you are still married by Federal standards and can file federal returns, get spousal social security etc.. but the WV state does not recognize. This is the next case to head to SCOUS on the commerce clause.

DOMA is about federal recognition and federal benefits, not about States.

by Anonymousreply 5603/26/2013

[quote]That poster is obviously saying that the likely outcome is Prop 8 narrowly overturned

Prop 8 should be unanimously struck down or there should be a movement to remove the Justices that believe a majority can vote away rights from a minority. Remember gays were allowed to marry and that right was taken away by a majority vote.

by Anonymousreply 5803/26/2013

It is clear that the Justices don't want to rule on whether there is a federal right to same-sex marriage. Kennedy seems to be saying, why in the world are you asking us to decide this question pro-equality forces when only 9 states recognize same-sex marriage? With Kennedy, the liberal justices will probably try to sidestep a national decision and decide it on narrow grounds that only applies to California.

by Anonymousreply 5903/26/2013

It only takes four Justices to grant cert to hear a case. It is possible that only four voted to hear the Prop 8 case. Based on Kennedy's question today asking why is this case before the Supreme Court (prematurely), he likely voted against hearing it. It is possible that only Alito, Thomas, Scalia, and Roberts voted for cert, hoping to produce a ruling explicitly stating that there is no constitutional right to same-sex marriage. Based today's oral arguments, the liberal justices don't seem too gung ho about ruling there is a national constitutional right to same-sex marriage. WHich means that it is likely Kennedy would author a narrow opinion for the Court that only applies to California, or possibly states with civil unions and domestic partnership laws.

by Anonymousreply 6003/26/2013

[quote] Justice Kennedy made it clear today that he is not yet willing to legalize same-sex marriage at the federal level.

You're quite confused. Two separate issues here: 1. Asking the SCOTUS to recognize a Constitutional right to same sex marriage (a possible issue in today's case). 2. Asking the SCOTUS to recognize the unconstitutionality of DOMA, which forbids the federal gov from recognizing marriages performed in the states (tomorrow)

They are TWO distinct issues, two distinct cases. Read up on it and get back to the thread. There seem to be a lot of people like you here who don't understand the cases.

by Anonymousreply 6103/26/2013

[quote]he liberal justices don't seem too gung ho about ruling there is a national constitutional right to same-sex marriage.

True. But the court also didn't seem gung ho about ruling that there is NO constitutional right to ssm, which is also just as significant.

by Anonymousreply 6203/26/2013

[quote]Justice Kennedy made it clear today that he is not yet willing to legalize same-sex marriage at the federal level.

R50, can you please point to that part of the transcript of the oral argument where he made that clear.

by Anonymousreply 6303/26/2013

Assuming they rule that DOMA is unconstitutional, wouldn't they then recognize that if they also declare Prop 8 unconstitutional (even by just punting) that the issue is going to come back to them in a few years. As has been stated, a couple who is married a marriage equality state moves to a non-marriage equality state and sues will bring the case back to SCOTUS -- at which point they'll support marriage equality -- so, why not just do it now?

by Anonymousreply 6403/26/2013

The Prop 8 issue is not about whether gays have a right to marry, but rather whether a popular vote can restrict who can enter into a marriage contract, and whether that restriction is a distinction without a difference.

Therefore, the court can, and should, strike down Prop 8, not because of an inherent right by gays to marry, but because popular votes cannot institute laws directed at a class of people, whose only distinction is membership in a minority.

by Anonymousreply 6503/26/2013

A Billionaire's Paradise: Puerto Rico’s Hard Sell

March 26, 2013

Too Soon for Court to Rule on Gay Marriage? "As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer's remorse about the case before them," the New York Times reports. "Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry."

The Washington Post notes the justices "wondered openly about whether it was time for the court to render a judgment."

Tom Goldstein sees two possible scenarios with the upshot being "a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights."

by Anonymousreply 6603/26/2013

r65, I can assure that not only will the Supreme Court not view this case as about what you think it is about, but not even are parties presenting this case in that manner.

by Anonymousreply 6703/26/2013

r64, the point is that Kennedy and others seem to be saying, this case is premature. We don't want to rule on the issue of whether gays have a constitutional right to marry yet. We would rather wait and see how public opinions affects the law in more states and see what empirical date says about the impact of gays marrying and raising children over a longer period of time.

by Anonymousreply 6803/26/2013

If SCOTUS rules that there was no standing - Judge Walker's judgment governs. Strikes down Prop 8 in the state of CA, but is not binding precedent on any other court.

If SCOTUS rules that certiorari was improvidently granted - The 9th Circuit decision will govern. It would strike down Prop 8 and also would govern all the states in the 9th Circuit. That would not bring gay marriage to all of these states, but if a state like WA tried to repeal it, the decision could prevent that.

by Anonymousreply 6903/26/2013

If SCOTUS rules that there was no standing - Judge Walker's judgment governs. Strikes down Prop 8 in the state of CA, but is not binding precedent on any other court.

If SCOTUS rules that certiorari was improvidently granted - The 9th Circuit decision will govern. It would strike down Prop 8 and also would govern all the states in the 9th Circuit. That would not bring gay marriage to all of these states, but if a state like WA tried to repeal it, the decision could prevent that.

by Anonymousreply 7003/26/2013

[quote] the point is that Kennedy and others seem to be saying, this case is premature. We don't want to rule on the issue of whether gays have a constitutional right to marry yet. We would rather wait and see how public opinions affects the law in more states and see what empirical date says about the impact of gays marrying and raising children over a longer period of time.

What a useless bunch of assholes. Really, they are going to wait to decide if gays are worthy of basic civil rights? Don't we pay taxes? Who exactly are we hurting? Ted Bundy was legally married after he was a convicted serial killer.

What happened to leadership? Doesn't the consitution lay the ground work?

by Anonymousreply 7103/27/2013

[quote]I still can't put it past the Mormons to have something else up their sleeve (payola, blackmail) and I hope they havent somehow influenced the Court to take the Prop 8 case in order to uphold it.

I read an article that the Mormons have dramatically reduced their anti-gay-marriage funding. They've even adopted the position that homosexuality is not a choice. They still believe the best marriage is between a man and a woman, but anti-gay-marriage is on the back-burner for them.

by Anonymousreply 7203/27/2013

[quote]I read an article that the Mormons have dramatically reduced their anti-gay-marriage funding. They've even adopted the position that homosexuality is not a choice. They still believe the best marriage is between a man and a woman, but anti-gay-marriage is on the back-burner for them.

That's really weird if it's true. It makes me wonder how deep their convictions were or perhaps what was the true motivation.

Was it all about some kind of poltical strategy?

by Anonymousreply 7303/27/2013

Here's the article on the Mormons' shift regarding homosexuality and same-sex marriage.

by Anonymousreply 7403/27/2013

So if prop 8 is overturned by any means and I marry my partner, and DOMA is overturned, can we file joint federal returns?

by Anonymousreply 7503/27/2013

Thank you, r68. But I have to agree with r71 -- that's a major wuss-out. Seriously, I'm a fucking citizen who pays my taxes, I wanted to treated the same as any other citizen -- with all the pros and cons that are involved.

by Anonymousreply 7703/27/2013

By DAVID COLE Published: March 25, 2013 THE Supreme Court will begin hearing two days of oral arguments today on the constitutionality of Proposition 8, the 2008 initiative that banned same-sex marriage in California, and on the Defense of Marriage Act, the 1996 law that forbids federal recognition of same-sex marriage.

DOMA poses easier legal issues. The statute, which President Obama believes is unconstitutional and which has been repudiated by Bill Clinton, who signed it, inserted the federal government into marriage law, historically the domain of the states. It was clearly driven by antigay animus, and as lower courts have ruled, there simply is no good reason for Congress to refuse to treat all state-recognized marriages equally.

The Prop 8 case, Hollingsworth v. Perry, poses thornier questions about political equality, and could have much broader consequences, because it calls into question the rights of all states to limit marriages to unions between men and women. I fully support marriage equality. But, strange as it may sound, I believe that in the Prop 8 case, the court should decide not to decide the gay marriage issue at all. The proposition has already been struck down by federal judges at the trial and appellate levels, the governor and attorney general of California have refused to defend the proposition and the parties seeking the Supreme Court’s review lack the legal capacity, or standing, to pursue the case.

If the court decides to resolve the merits, it should rule that the Constitution commands recognition of same-sex marriage on equal terms with opposite-sex marriage. A decision to the contrary would be a modern-era Plessy v. Ferguson, the notorious 1896 decision affirming segregation as “separate but equal.” Correspondingly, a decision ruling Prop 8 unconstitutional would be the Roberts court’s Brown v. Board of Education, the 1954 decision that struck down racial segregation in schools. The legal and moral choice should be clear.

But the Brown analogy should give us pause. Same-sex marriage is legal in nine states and the District of Columbia, but is the country ready for a decision requiring all 50 states to recognize such unions immediately? Brown triggered a notorious backlash, in both the South and the North, and its impact was blunted by demographic changes and later court rulings, leading to what the education scholar Gary A. Orfield has called the “resegregation” of American schooling.

Or consider Roe v. Wade, the 1973 decision that protected women’s right to have abortions. Justice Ruth Bader Ginsburg, an unabashed defender of abortion rights, has criticized Roe for imprudently intervening in that debate, at a time when the idea of abortion rights was already gaining ground at the state level. The Roe decision galvanized the anti-abortion movement, with political impacts that still linger.

In the long run, national recognition of same-sex marriage is inevitable. Same-sex marriage rights, at first imposed by courts, have now been recognized by state legislatures and prevailed in all four states where they were on the ballot in last year’s election. Young people overwhelmingly support it, and public opinion has shifted on this issue faster than on almost any other social issue in history. It is only a matter of time before all state laws reflect that view.

Prudence counsels that marriage equality should be allowed to continue gaining support in the states, and that a federal resolution should be left for another day. What is more, the court’s doctrine dictates just this deferral. California has not only chosen not to appeal, but has actually filed a brief supporting its law’s challengers. A coalition of Californians who originally sponsored Prop 8 has stepped in to defend the law. But they are not accountable to the state or its people, are free to pursue their own ideological interests and have suffered no “distinctive injury” from the 2010 lower court decision that found that Prop 8 violated the 14th Amendment’s guarantees of due process and equal protection.

The Supreme Court has

by Anonymousreply 7803/27/2013

Even Justice Sotomayor asked aloud why do they have to decide the merits of the right to same=sex marriage now. She pointed out that SCOTUS allowed racial segregation to perculate untouched from 1898 until 1954, the court let the states and society wrestle with the issue because stepping in and imposing a nationwide solution. It seems Sotomayor is not too keen to address a national solution on the merits either.

by Anonymousreply 7903/27/2013

JUSTICE SCALIA: I'm curious, when -¬ when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker [v. Nelson], where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?

MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional [sic] when we -¬ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -¬

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There's no specific date in time. This is an evolutionary cycle.

Ted Olson is a brilliant and fantastic lawyer. And he gave a powerful performance this morning. But his response to Justice Scalia missed a major opportunity to show how the original meaning of the Constitution supports marriage equality.

The simple answer to Justice Scalia is that laws banning same-sex couples from marrying were unconstitutional the moment when the American people, in 1868, wrote the guarantee of equality for all persons into the Constitution. As the exchange this morning demonstrates, Justice Scalia seems to accept this proposition with respect to laws prohibiting couples from different races from marrying one another, which the Supreme Court found unconstitutional in the late 1960s. He should acknowledge the same constitutional truth in the Prop. 8 case. The text of the Equal Protection Clause of the Fourteenth Amendment makes clear that the freedom to marry should be equally available to all, whether black or white, heterosexual or gay, rich or poor.

The Equal Protection Clause provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Drafted in 1866 and ratified in 1868, the Clause wrote into the Constitution the ideal of equality first laid out in the Declaration of Independence. It established a broad guarantee of equality for all persons and demanded, as Olson reminded the Justices this morning by invoking Justice Ginsburg's eloquent opinion in the Virginia Military Institute case, "the extension of constitutional rights and protections to people once ignored or excluded." While race was obviously at the forefront of the minds of the Amendment's drafters--after all, they had just secured an amendment banning slavery in the wake of a brutal civil war--they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That's not the point. No originalist--not even Justice Scalia--believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren't drug-sniffing police dogs in 1791, doesn't mean their use can't violate the Fourth Amendment's protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to "any person." In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment's framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one's choice thus contravene the original meaning of the Fourteenth Amendment.

It may have taken us 100 years to get it right with respect to race-restrictions on the freedom to marry, but it doesn't mean those laws weren't unconstitutional in 1868. The same is true, nearly 150 years after the ratification of the Fourteenth Amendment, for laws that deny gay and lesbian couples the freedom to marry. I only wish Justice Scalia had been forced to face this constitutional text and history head on this morning.

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by Anonymousreply 8003/27/2013

The supreme Court does not have to hear anything they do not want to except for a few narrow exceptions. they are not going to take these two cases just to half ass rule on them. The country has shifted in favor of it, and the Justices all know it. They do not want to be on the wrong side of history. At its roots the gay marriage issue is an equal protection. Mark my words, this will be a Loving v. Virginia ruling and there will be at least 6 justices in the majority.

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." -SC Justice Earl Warren.

"I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about."-Mildred Loving in 2007

“As Mankind becomes more liberal, they will be more apt to allow that all those who conduct themselves as worthy members of the community are equally entitled to the protections of civil government. I hope ever to see America among the foremost nations of justice and liberality.”

― George Washington

by Anonymousreply 8103/27/2013

Thank you r81. I hope you're right. All the justices have to do is say a simple 'yes.' No risk for them, it's obvious now, and they'll go down in history as heros of justice. Surely they must see that.

by Anonymousreply 8203/27/2013

r81, you are living in an alternative reality. I have seen no constitutional expert or pundit that thinks there is any real chance the Court will rule on the merits of the issues, and they seem especially certain they will not rule there is a federal constitutional right to same-sex marriage. Even Sotomayor also suggested this issue is prematurely before the court and should be grappled with at the state level for many more years before the SCOTUS steps in.

by Anonymousreply 8303/27/2013

But the truth is, r83, no one knows how the court will rule. All the experts were wrong in their predictions about Obamacare, so it's important to take these 'expert predictions' with a grain of salt.

And one certainly can't predict decisions based on what justices ask in court. They often ask questions that they themselves are grappling with, which means that the seemingly 'tough questions' are asked of the side they're leaning towards, while the opposing side--the side that they're not finding convincing--seemingly gets a pass. The oral arguments are not really an opportunity for the justices to show the public where they're leaning... unless you're showboating like Scalia.

by Anonymousreply 8403/27/2013

The black guy will vote against it, cause he's black.

The closeted gay guy, with gay face will vote against it.

The women will vote for it, because they think they can change a man if he only has the right women.

That leaves the rest of them, oh who cares. They should've made Hillary Chief Justice.

by Anonymousreply 8503/27/2013

A deep thinker you are not, r85.

by Anonymousreply 8603/27/2013

r

by Anonymousreply 8703/27/2013
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