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Alito's provocative question

Supreme Court Justice Samuel Alito

I'm still working my way through the transcript (pdf) of today's Supreme Court oral argument on California's Prop 8, but there's one quote that already seems to be generating quite a bit of attention. It comes by way of Justice Samuel Alito:

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

"But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"

Alito's argument seems to be one focused on the calendar. Perhaps, the theory goes, millions of Americans can be denied equal rights for an indefinite period of time, and jurists can revisit the issue in the future. At that point, they can ask once more whether or not allowing two consenting adults to get married is "a good thing."

Remember the fine print in the Declaration of Independence? We have an inalienable right to liberty and the pursuit of happiness, just so long as the specific type of happiness is older than mobile telephones.

I'm not altogether sure what Alito thinks might happen, even if he had "the ability to see the future," but the larger question seems to be the justice's willingness to leave marriage rights "for the people." What's wrong with that? The answer, I suspect, has something to do with the nature of rights -- they are, by definition, opportunities afforded to people that cannot be taken away without due process.

Rights are not supposed to be open to popularity contests. Throughout American history, if all contentious decisions over civil rights were left solely to popular will and the political process, progress would have been very slow, indeed. It's precisely why Americans have turned to their last available option -- the courts -- as a way of ensuring their rights are protected.

What's more, as Solicitor General Donald Virrelli reminded Alito, opponents of marriage equality aren't seeking a pause to progress, or decisions through initiatives, referendums, or the political process -- they're seeking constitutional amendments to permanently limit the rights of same-sex couples.

Virrelli also reminded the justices:

"[T]he principal argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus."

by Anonymousreply 4903/27/2013

No one expects Samuel Alito to rule in favor of equal marriage.

The wild cards are John Roberts and Anthony Kennedy.

Alito, Scalia and Thomas are already decided.

by Anonymousreply 103/26/2013

Dear Lord in Heaven!!

by Anonymousreply 203/26/2013

Alito is skewed towards totally pussying out like the Court did with Roe vs. Wade. The Court gave it back to the states to decide. In that case, as long as the basic fundamental right TO an abortion was not completely forbidden by the states, the constitutionality of state abortion laws was and remains always up for grabs, for "fresh analysis." But the High Court DID determine that a woman HAD a right to an abortion, per se, with qualifiers.

The Court HERE is being asked whether gay marriage can be determined to be PROTECTED by the Constitution, PERIOD, much the same as whether a woman had a constitutionally protected right to an abortion, to the control of her own body, by applying constitutional principles. Here, the question is whether the equal protection laws go so far as to protect same sex marriage. And, as with abortion, centuries of religious doctrine, societal precedent and mores are being considered. But, as others have stated, fundamental RIGHTS are not supposed to be up for a vote! THAT IS WHY THE COURT IS BEING ASKED TO APPLY THE CONSTITUTION HERE and set legal precedent/law.

by Anonymousreply 303/26/2013

I feel stabby.

by Anonymousreply 403/26/2013

I think it's likely the Justices will rule in our favor, but narrowly. One course would be to let the 9th circuit ruling stand on technical grounds--a punt. This returns same-sex marriage to California, but does not affect other states (except, perhaps Oregon, Hawaii and Nevada which are under the 9th Circuit's jurisdiction and seem to be in the same situation as California (robust civil unions).

They could also adopt the 9th circuit's reasoning which would also affect Illinois, New Jersey, Rhode Island, and Delaware.

by Anonymousreply 503/26/2013

[quote]Alito is skewed towards totally pussying out like the Court did with Roe vs. Wade. The Court gave it back to the states to decide.

Not really. The states could tinker with the edges but Roe made abortion in the first 6 months a federal right. The Court, lower courts and states have been eroding Roe.

by Anonymousreply 603/26/2013

Oh, no. I hadn't thought of that. What if he's right? How long did it take America to rule that the Mormons couldn't have multiple wives? Gays should wait at least as long as the Mormon's did to have their social contracts defined by the state.

by Anonymousreply 703/26/2013

[quote]Traditional marriage has been around for thousands of years.

Yes, but was is a traditional marriage? In Betty Bowers' popular video, she sheds light on that:

by Anonymousreply 803/26/2013

Provocative? Try stupid.

California gave all the benefits under a different name that created a second-class status for gay couples -- this "redefining" marriage is the same rhetoric as "special rights."

Equality and non-discrimination do not "redefine" a law, they prevent it from being read in its ugly bigoted ways.

by Anonymousreply 903/26/2013

Somebody please send the Betty Bowers to the Alito email!

by Anonymousreply 1003/26/2013

It's a childish argument. There are gay people alive today who have been in unions longer than Alito has been alive. They just weren't called marriages or given social sanction.

There was something like gay marriage in Australia in the nineteenth century; and Virginia in the eighteenth; and the Catholic church blessed same sex unions once upon a time.

Nothing regarding gay sexuality is new. Nothing.

by Anonymousreply 1103/26/2013

It's not childish. It's specious. But it has a definite purpose--to sway other justices away from making any sweeping decision.

by Anonymousreply 1203/26/2013

Someone needs to tell Alito about Saints Sergius and Bacchus.

by Anonymousreply 1303/26/2013

Alto seems to be walking on Very thin ice

by Anonymousreply 1403/26/2013

The constitution itself was only around for 14 years when the SCOTUS came up with Marbury v. Madison. The timing argument is BS

by Anonymousreply 1503/26/2013

Roe v. Wade involved medical care so the court allowed the states to establish medical regs to protect the patient - like they do for any other medical procedure - as long as the reg was necessary and not designed to impede - nor in reality did not impede - that right to abortion.

Roe took a long time. Over a year after the orginal oral arguments held around December 1971 and then they called for renewed oral arguments before they reached the decision in January 1973.

No one knows when this decision will be reached - as in Roe they could call for more argument or additional briefings. Or not. LOL! They are their own bosses.

by Anonymousreply 1603/26/2013

Actually, to be entirely honest, I'm a little worried about the "too soon to be sure of effects" argument. As time passes, a body of social science literature will emerge concerning same-sex marriage and the kiddies; and, almost inevitably, this scholarship will be mixed and ambiguous, since not all same-sex parents will be perfect. So conservatives will have new excuses for delay.

Nobody asked about the effects on their children when mixed-race marriages were the issue. I'd rather not see this issue raised now for us.

by Anonymousreply 1703/26/2013

[quote]The constitution itself was only around for 14 years when the SCOTUS came up with Marbury v. Madison. The timing argument is BS

This is going to be my go-to quote when I see the timing argument raised online. Thanks, R15.

by Anonymousreply 1803/26/2013

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. "


" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "


by Anonymousreply 1903/26/2013

I agree that it is a totally specious argument. So far, no one has come up with any concrete examples of what these scary, mysterious, deleterious effects might be that will arise as a result of same-sex marriage. So far, in all the places that have recognized a right to same-sex marriage, the negative consequences have been nil. Moreover, as others have noted, same-sex couples have been living together as if they were married -- except without the rights, privileges, and benefits. Again, no one can point to any harm to society as a result of those relationships.

by Anonymousreply 2003/26/2013

The shocking thing, at least to me, was Sotomayer. She went after olsen, even comparing gay marriage to incestuous marriage. WTF!

by Anonymousreply 2103/26/2013

While I almost always disagree with Scalia on major cases, he posed the more provocative question: when did the right to same-sex marriage become a fundamental national right? I was shocked at how Olson seemed to stumble to find an answer. He should have anticipated that question a long time ago.

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.

by Anonymousreply 2203/26/2013

I was quite surprised that Olson failed to answer Scalia's question. Scalia is right, there is an easy answer: the prohibition was unconstitutional at the time that the Equal Protection Clause was adopted. I'm not sure why Olson refused to say that.

by Anonymousreply 2303/26/2013

Because Olson knows Scalia would respond that it is preposterous to believe that the men who wrote the 14th Amendment had same-sex marriage in mind. Scalia believes what the people who wrote the constitution had in mind controls.

by Anonymousreply 2403/26/2013

He's alright but just look at his background. He's doing okay for his heritage.

I've never gotten how the east coast Italian Catholic doesn't get how odd they seem to the rest of the country. We're a protestant nation. Both white and black average America is comprised of protestants. The catholic finds the mormon to be odd just as protestants find catholics to be odd. Am I wrong?

by Anonymousreply 2503/26/2013

R24 is correct. Scalia was laying a trap and Olsen deftly avoided it.

And Scalia is a done deal anyway. There's no point in humoring him.

by Anonymousreply 2603/26/2013

I thought the Supreme Court justices were supposed to be brilliant scholars. I'm not at all impressed with their line of questioning.

by Anonymousreply 2703/26/2013

Please elaborate R24

by Anonymousreply 2803/26/2013

[quote] these scary, mysterious, deleterious effects

And it's worth noting: A heterosexual can be a serial child-rapist and murderer and yet STILL retain the right to marry. Alcoholics retain the right to marry: felons, murderers, child abusers, a 10-time divorcee who doesn't make payments to support children from his previous marriages. ALL retain the right to marry.

But the jury is still out on gays because the justices are not sure how they'd be raising kids. I call bullshit. For heterosexuals, suitability as a parent is NEVER taken into consideration for marriage rights.

Very convenient... Because gays can't marry, there can't possibly be any evidence about the 'so-called effects' of gay marriage. You can call it a scary unknown.

And nowhere in this argument is the idea that gays are equal, that the effect on gay people of depriving them of gay marriage is of EQUAL concern because they are EQUAL citizens.

by Anonymousreply 2903/26/2013

someone at work today said it would be june before we had the SCOTUS's decision. is that true?

by Anonymousreply 3003/26/2013

The effect really shouldn't be an issue. If ending segregationhad a negative economic effect, or if children thrived in separate schools, does that mean we should have kept Jim Crow laws?

by Anonymousreply 3103/26/2013

Mrs. Betty Bowers used r15's comment in a post on her Facebook page:

by Anonymousreply 3203/26/2013

R28...I'm not the poster in question, but there's not much to elaborate. Scalia believes that the Constitution is not a living document.He believes that the intent of the writers of the Constitution is the measure by which decisions should be made.

The writers of the 14th amendment would not have had a progressive gay rights perspective. So, to someone like Scalia, we are forever frozen out of its protection.

by Anonymousreply 3303/26/2013

r31, effect is important to legal constitutional scrutiny. If a state has to show a rational basis between its action (Prop 8) and its goal in so doing that action, it will usually say that the action is based on legitimate government interest, in this case, restricting marriage to heterosexual couples furthers the government's interest in preserving the family unit for procreation and the well-being of children in marriage. If the judges' believe that same-sex marriage would undermine this goal or is not in furtherance of that goal, they will uphold the law/proposition as constitutional.

by Anonymousreply 3403/27/2013

Scalia's understanding of the Founders' intentions always seems to support his political point of view. Isn't that convenient?

by Anonymousreply 3503/27/2013

Do you think Scalia truly believes in his ludicrous legal philosophy of originalism, or do you think he just uses it as a convenient vehicle for his own biases and prejudices?

by Anonymousreply 3603/27/2013

It's pretty much been established that Scalia is the jurisprudence equivalent of an internet troll.

by Anonymousreply 3703/27/2013

It's a big ruse to play with his own personal opinions. He's actually unqualified as to being a judicious person, let alone a judge, let alone a supreme.

by Anonymousreply 3803/27/2013

Both, R36. It's likely his "philosophy" on original intent came from his need to freeze the world in place to support his biases and prejudices.

by Anonymousreply 3903/27/2013

What "effects" is he talking about? The only possibilities are that some gay marriages will last a few weeks while others will last decades or a fucking lifetime. Some of those marriages will produce kids, other won't. Some of them will be faithful, others won't - JUST LIKE STRAIGHT MARRIAGES, MORON!!!

He's just spewing bs.

by Anonymousreply 4003/27/2013

Rachel Maddow called Scalia a troll on The Daily Show. She sat in on the Voters Rights sessions. She said he basks in the reactions of the gallery,to the outrageous/provocative things he says. It is a national disgrace that he, Thomas and Scalia are "Justices". At times like this I feel SO frustrated, that these fools have the power to affect our lives to such an extent.

by Anonymousreply 4103/27/2013

Really, Alito pretended gay people just started having families 5 years ago is ridiculous. The law needs to recognise what is already happening in society. It's not about permissiveness. It's about catching up.

by Anonymousreply 4203/27/2013

It's disgusting and dripping in homophobia.

Imagine that one of the most important and powerful judges in the land lives in such a contained bubble that he neither knows of or can conceive of long term same sex relationships, some of which involve children. He seems to have no knowledge of their existance and the potential legal handicaps their relationships and families have relative to heterosexual couples.

Even Robert said something like marriage is just a label really that gay people want. Is HE that ignorant as well?

Idiocy. Truely amazing. These are supposed to be smart men.

by Anonymousreply 4303/27/2013

[quote]Do you think Scalia truly believes in his ludicrous legal philosophy of originalism, or do you think he just uses it as a convenient vehicle for his own biases and prejudices?

Let me put it this way: Scalia is also a fierce defender of states' rights vis-a-vis the federal government but when a state wanted to legalize medical marijuana, Scalia said federal law controls.

by Anonymousreply 4403/27/2013

Scalia is incompetent. His decisions have no judicious balance.

by Anonymousreply 4503/27/2013

[quote]Do you think Scalia truly believes in his ludicrous legal philosophy of originalism, or do you think he just uses it as a convenient vehicle for his own biases and prejudices?

He's been wildly inconsistent in applying his own concept of originalism, so it's the latter. There are a few isolated cases, like the marijuana one alluded to above, where 'originalism' seems to have been applied yielding a result somewhat at odds with social conservatism, and people tend to point that out in the sense of 'At least he's consistent in his nut-baggery,' But the truth is: in the vast majority of cases, he's clearly pulling it out of his ass to get the results he wants.

Citizens United is a clear example.

The framers of the Constitution understood "corporations" as "people"?!?! Oh, reaaaaaallllllllly?!

by Anonymousreply 4603/27/2013

One of the cool things about being gay is you don't get married. Because when you get married, you get divorced. And divorce is yucky.

I say eliminate all marriage. It doesn't work. Romance dies. Too many kids are born. If a woman was forced to support her own offspring, you damn sure would see more birth ocntrol used.

by Anonymousreply 4703/27/2013

r47 you are an idiot.

by Anonymousreply 4803/27/2013

Can you imagine!? It's a propaganda headline waiting to happen! The Onion, hello!

by Anonymousreply 4903/27/2013
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