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Thread: Supreme Court agrees to hear same-sex marriage cases

  1. #1
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    Supreme Court agrees to hear same-sex marriage cases

    After granting a writ of certiorari in four same-sex marriage cases in which federal courts of appeals upheld state same-sex marriage bans, the U.S. Supreme Court is poised to squarely confront, for the first time, the following two questions:

    1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
    The first of these questions was before the Court in 2013, but the Court declined to answer it, holding that it could not do so because it was barred by a lack of standing on the part of the California gay marriage ban's proponents. To make a long story short, the law was being defended by a coalition of organizations that had supported the Proposition 8 ballot initiative after the California government declined to defend the law; the Court held that they had no right to bring an appeal. This decision was widely described as a "punt" or a "dodge" by the press at the time, but I disagreed and still do. The doctrine of standing (or, put simply, who has the right to bring a case in federal court) is a threshold matter in every single case and can't be ignored just because we really, really want to see a substantive question decided.

    This time around, there is no question of standing because the states themselves are defending their same-sex marriage bans, and therefore probably no option for the Court other than to decide whether the Constitution requires states to grant marriage licenses to same-sex couples. It was pretty clear as early as November 6, 2014, when Sixth Circuit Court of Appeals became the first federal appeals court to uphold a gay marriage ban, that this would happen. Prior to November 6, all federal courts of appeal that had considered same-sex marriage bans had struck them down, and the Supreme Court declined to grant certiorari in any of those cases. The Sixth Circuit decision, however, created a "circuit split" that the Supreme Court could not avoid having to resolve.

    So, given the near-certainty that the Supreme Court will resolve the constitutionality of same-sex marriage bans, how are they likely to do so? Predicting the Court's decisions can be tricky, but here, most factors seem to weigh in favor of an expectation that the Supreme Court will hold that same-sex couples have a constitutional right to marry.

    First of all, the legal case for same-sex marriage is extremely straightforward. The 14th Amendment to the Constitution states, among other things, that a state may not "deny to any person within its jurisdiction the equal protection of the laws." It's inarguable, of course, that same-sex couples are being treated differently than opposite-sex couples under same-sex marriage bans, but that's not enough to resolve the case on its own, since nearly all laws single out particular classes of people for differential treatment. Under current Fourteenth Amendment case law, laws and regulations may be subject to different levels of scrutiny depending on the classes they target. Lower courts have not been able to agree which of these levels of scrutiny applies to laws targeting gay people, and a big part of the Court's job will likely be to answer that question.

    The baseline of Fourteenth Amendment scrutiny is "rational basis review," which requires only that a law bear a rational relation to a legitimate government purpose. It's typically applied to laws that don't burden any groups of people who have historically faced legal discrimination. By now, you'll probably see the problem with applying rational basis review to a law that targets gay people, but nevertheless, lower federal courts have employed this standard in coming down on both sides of the issue. For the Court to hold that same-sex marriage bans are constitutional, it will almost certainly have to hold that rational basis review applies, but some lower courts have held that same-sex marriage bans are so clearly motivated by animus toward gay people as to fail even the rational basis test. The actual history of campaigns for same-sex marriage bans in this country provides a whole lot of support for that view.

    On the other end of the spectrum is "strict scrutiny," under which a state must show that its law is "narrowly tailored" to a "compelling government interest." This is an extremely demanding standard, usually applied to laws targeting "discrete and insular minorities" or restricting speech, and usually fatal to the laws it's applied to. The opponents of the same-sex marriage bans will of course hope to establish that this standard of review applies, and if they succeed on that point, they'll almost certainly win their case.

    In addition to the argument based on the Fourteenth Amendment's Equal Protection Clause, there's a second one based on the same amendment's Due Process Clause, which states that a state may not "deprive any person of life, liberty, or property, without due process of law." Without going into too much of the history, this clause is generally understood to protect most of the rights included in the Bill of Rights, as well as certain other unenumerated rights "implicit in the concept of ordered liberty," from interference by the states. In Loving v. Virginia (1967), a case regarding Virginia's ban on interracial marriage, the Court held that the right to marry was one of these rights. It's difficult for me to imagine a convincing basis on which this right could be withheld from same-sex couples but not interracial couples.

    So, what we've got here doesn't seem to be a terrible difficult question of law, and the way the Supreme Court treated these cases up until November 6 can be read as suggesting that the Court thought lower courts were resolving it correctly in favor of same-sex couples. Not only did they decline to hear any same-sex marriage cases before the circuit split; they also declined to issue stays that would have prevented lower-court rulings from going into effect. In practice, the Supreme Court's inaction means that gay couples have been getting married across the country in the numerous states where gay marriage bans were held to be unconstitutional. Former U.S. Solicitor General Ted Olson, who argued the Prop. 8 case before the Supreme Court, thinks this is reason enough to believe the Supreme Court intends to hold same-sex marriage bans unconstitutional, to wit:

    I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed. ... To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.
    Of course, all this discussion is predicated on the idea that the Supreme Court is made up of legal scholars applying the law, through the lens of their own particular legal philosophies, and not just political appointees acting in the service of an ideology. In my experience, that's more true than it isn't, but this post is probably still incomplete without looking at the actual voting makeup of the Court.

    The simplest way to describe the makeup of the Court is thus: Five conservative justices, and four liberals, with Reagan appointee Anthony Kennedy as the median justice. Given the strength of the same-sex couples' legal argument, it's probably fair to assume that liberal justices Kagan, Breyer, Ginsberg, and Sotomayor are reliable votes to strike down the bans. Conservative justices Scalia and Thomas have said enough in the past on both the subject of gay rights and some of the particular legal theories involved in this case to make it clear they'll vote to uphold the bans; Alito's almost as certain to be on this side of the vote. Kennedy, while generally conservative, has been a key vote in a handful of past Supreme Court victories for gay rights advocates; on the other hand, he's hinted in the past that he believes states have the right to define marriage on their own terms. Kennedy is the most likely fifth vote for striking down the bans, but Chief Justice John Roberts, who was surprisingly cagey on the subject of state bans in U.S. v. Windsor (2013), might be an alternative possibility. I wouldn't be shocked to see a 6-3 decision to strike down the bans.

    One more thing about Kennedy that's probably worth noting: At the age of 78, and probably feeling no strong compulsion to stay on the court to maintain any sort of ideological balance, he's likely nearing the end of his career. He's got to know that that his vote in this case, especially if it's decisive, is likely to determine the way history sees him. If you're inclined to believe the justices consider such things, then I think you have to believe that could tip the scales.

    It's not impossible that I'm getting this all wrong. Supreme Court prediction, most of the time, is just reading tea leaves. However, in view of all the above, it's very difficult to imagine this case ending any other way than in fully equal access to marriage for same-sex couples nationwide.

    But that's all just my opinion, after all. I wonder what a real constitutional originalist would think.
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  2. #2
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    tl;dr: The Supreme Court's going to decide whether same-sex marriage bans are constitutional and I think the Court will probably say, correctly, that they're not.
    Last edited by Michael MacFarlane; 01-17-2015 at 03:10 PM.
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  3. #3
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    the constitution is against gay marriage because it is a good christian document written by jesus

  4. #4
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    I think "X". I understand this intuitively y'see so you can't argue with it.

  5. #5
    Them liberals r ternin us all in-tah homosexuals. I can prove it. Milk is homogenated. What is it? Only them sneaky science-peoples know. But look at them words there. Homo, which we all know that means sword fightin' with yer willies. And there's kinda but not quite the word gene in there. That's right. They're fillin' them milk jugs with homo genes. HOMEOPATHY, STOP VACCINES, GMOS = GREAT MONSTER OSTRICHES, THE MOON LANDING WAS FAKE, AMERICA IS A CHRISTIAN NATION
    I can't wait for the day schools get the money they need, and the military has to hold bake sales to afford bombs.

  6. #6
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    my opinion is just as valid as yours, so i guess we'll just have to agree to disagree

  7. #7
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    famous people who "agreed to disagree"

    Chamberlain

    Hitler

  8. #8
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    Quote Originally Posted by Jon`C View Post
    the constitution is against gay marriage because it is a good christian document written by jesus
    thomas jefferson was a good christian man who didn't need no materialism

  9. #9
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    i own slaves b/c the constitution isn't a living document + its what the founding fathers would have wanted + the bible endorses slavery uncritically and unconditionally just like it does usury and capital

  10. #10
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    Quote Originally Posted by Jon`C View Post
    the constitution is against gay marriage because it is a good christian document written by jesus
    Sadly enough, there is a non-zero percentage of the population that believes that a) it is a Christian document and b) though Mr. Christ probably didn't write it himself, those would say he came down and influenced the authors of the constitution.

    My abject pessimism would believe the SCOTUS would overturn all the progress in telling the states banning to GFY.

    Dream ruling: 9-0 decision telling states banning to GFY and also rules that "In God We Trust" be stricken from every government owned entity from currency to the local tool shed in some back-water hick-town in West Virginia.
    Code to the left of him, code to the right of him, code in front of him compil'd and thundered. Programm'd at with shot and $SHELL. Boldly he typed and well. Into the jaws of C. Into the mouth of PERL. Debug'd the 0x258.

  11. #11
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    McLongname, your analysis reads nearly word for word like an analysis I read yesterday on G+. It seems that smart legal people tend to think alike.
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  12. #12
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    The PPACA, legalized marijuana, & now gay marriage. Keep this up U.S.A. & I may have to move back. Meanwhile in France, we have a Tea Party of sorts that's gaining strength due to assimilation/immigration issues & the whole terrorist thing.
    ? :)

  13. #13
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    Would that be the French version of the National Front? I can't say I've ever really thought of the Tea Party lot as being as horrible as that because they're happening very far away.

  14. #14
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    Quote Originally Posted by Baconfish View Post
    Would that be the French version of the National Front? I can't say I've ever really thought of the Tea Party lot as being as horrible as that because they're happening very far away.
    I think that they're far more alike than different.
    ? :)

  15. #15
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    Quote Originally Posted by Baconfish View Post
    Would that be the French version of the National Front? I can't say I've ever really thought of the Tea Party lot as being as horrible as that because they're happening very far away.
    What is the National Front? I know, :google: but something tells me that if I do, I suddenly get placed on a FBI list.
    Code to the left of him, code to the right of him, code in front of him compil'd and thundered. Programm'd at with shot and $SHELL. Boldly he typed and well. Into the jaws of C. Into the mouth of PERL. Debug'd the 0x258.

  16. #16
    What, you haven't heard of Le Pen and the front national?

    http://en.wikipedia.org/wiki/Nationa...t_%28France%29

  17. #17
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    Quote Originally Posted by Ford View Post
    McLongname, your analysis reads nearly word for word like an analysis I read yesterday on G+. It seems that smart legal people tend to think alike.
    I'm not surprised. Like I said, the law in this case is straightforward. The result is going to depend almost entirely on how the Court decides questions of mixed law and fact like "are gay people the sort of class that merits heightened scrutiny?" and "is the interest in (encouraging procreation/maintaining the legitimacy of the institution of marriage/protecting children from the unknown until proponents of same-sex marriage prove a negative and show that children aren't harmed if they're raised by same-sex parents/persecuting gays for kicks) (legitimate/compelling)?" and "is this ban rationally related to (select interest from above list)?"

    Justices Scalia and Thomas, of course, will maintain till their respective dying breaths that mere antipathy toward homosexuality, without anything more, is a legitimate rationale for a law (and I can't stress enough that this is not an exaggeration of their positions on the matter), but that ship has sailed, precedent-wise, and good riddance.
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  18. #18
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    Quote Originally Posted by dalf View Post
    What is the National Front? I know, :google: but something tells me that if I do, I suddenly get placed on a FBI list.
    https://www.torproject.org/download/...d-easy.html.en

  19. #19
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    If there's one thing North America has to recommend it, it's that the far right is far less dangerous here than in Europe.
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  20. #20
    If you follow Reid's advice, you may find yourself the subject of a general warrant.

    https://news.ycombinator.com/item?id=8918265

    Edit: Well, maybe not, per comments on that page. Regardless, the best way to evade Sauron may simply be to refrain from wearing the ring.
    Last edited by Reverend Jones; 01-20-2015 at 01:18 PM.

  21. #21
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    A+ thread, keep this fine **** coming our way, MM.

  22. #22
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    Wait, so the question is "are states required to uphold amendments to the constitution?"
    error; function{getsig} returns 'null'

  23. #23
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    Quote Originally Posted by dalf View Post
    What is the National Front? I know, :google: but something tells me that if I do, I suddenly get placed on a FBI list.
    Well, the UK version is a hard-right political party for white supremacists. They were a serious thing back in the 70s and they mostly consist on skinheads, neo-nazis and other general facist gob****es. They declined here in the 80s after a lot of them actually left and joined up with the Tories.

    Right now we have problems with UKIP who are seen as a legitimate party and actually won the last lot of European elections in May because they try to operate under the facade of being reasonable because all the top brass are middle class. [That's the real meaning of middle class, not the weird American thing where everyone is "middle class".]

    They're a bunch of xenophobic wankers preying on peoples' fears and disillusionment with the establishment in order to gain power, and they're it doing wearing brogues instead of jackboots.

    Quote Originally Posted by Michael MacFarlane View Post
    If there's one thing North America has to recommend it, it's that the far right is far less dangerous here than in Europe.
    Luckily ours only ever grows in popularity under the guise of a "protest vote" in the aftermath of a war or massive recession.

    ...****.
    Last edited by Baconfish; 01-20-2015 at 09:11 PM.

  24. #24
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    Quote Originally Posted by Alan View Post
    Wait, so the question is "are states required to uphold amendments to the constitution?"
    Well, no? The Fourteenth Amendment explicitly applies to the states already. Maybe I'm not sure what you're asking.
    If you think the waiters are rude, you should see the manager.

  25. #25
    Somewhat off topic but related: I find it amusing now with this new "hip" Pope, that he is going around changing all this stuff. Like how he comes out and says something about gay marriage being alright or something? I mean yeah, if they don't want their religion to die off then they better start appeasing to the masses even if it goes against what's written in that book.
    "Nulla tenaci invia est via"

  26. #26
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    To be fair they've been cherry picking what bits of the book they want to interpret as they please for centuries.

  27. #27
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    The problem with ancient religious manuscripts that are loaded with contradictions is that it's impossible not to cherry-pick them if you want to try & fake a concise message.

    I don't know much about the UK's National Front, but France's National Front is a lot like the Tea Party back in the states. Yes, there are differences, but their ideological differences are few & their tactics are quite similar. As far as white supremacy, the modern American & French right tend to show a bit more tact (though there are certainly fine examples of overtly racist behavior--Le Pen's father (a borderline Holocaust denier), who was the previous leader of the party was convicted of racism or inciting racial hatred at least 6 times--& I don't think that anyone will need to be reminded of America's racist past & present).
    Last edited by Mentat; 01-22-2015 at 03:31 AM.
    ? :)

  28. #28
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    Americans put far too much weight on the constitution. As a non-american I see it being used like some sort of religious document and the arbiter of all that is right/wrong. While it is well written and well thought out, it doesn't follow that it's infallible or correct for the values of 2015.
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  29. #29
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    Quote Originally Posted by Baconfish View Post

    They're a bunch of xenophobic wankers preying on peoples' fears and disillusionment with the establishment in order to gain power, and they're it doing wearing brogues instead of jackboots.
    I get tired of all the hyperbole and hysteria about Muslims all being terrorists, but I don't think it is unreasonable for a culture to be conscious of how much their culture might be influenced by an influx of another culture. In small numbers it may be no big deal, but I wouldn't necessarily be happy if we had a bunch of people with backwards ideologies start to become a political force that informs social policy.

  30. #30
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    That would make sense, but unfortunately it's the people with the backwards ideologies that formed the party in the first place, they're all Little Englanders. For a decent approximation of them see The Dursleys.

  31. #31
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    Quote Originally Posted by Ni View Post
    Americans put far too much weight on the constitution. As a non-american I see it being used like some sort of religious document and the arbiter of all that is right/wrong. While it is well written and well thought out, it doesn't follow that it's infallible or correct for the values of 2015.
    The Americans who agree with your view point are the Americans who understand the US Constitution the best. The ones who view it as a religious document are the ones who believe the US Constitution sanctions God in public schools, our money, and courtrooms.

    Hint: It absolutely forbids all those.
    Code to the left of him, code to the right of him, code in front of him compil'd and thundered. Programm'd at with shot and $SHELL. Boldly he typed and well. Into the jaws of C. Into the mouth of PERL. Debug'd the 0x258.

  32. #32
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    Quote Originally Posted by Ni View Post
    Americans put far too much weight on the constitution. As a non-american I see it being used like some sort of religious document and the arbiter of all that is right/wrong. While it is well written and well thought out, it doesn't follow that it's infallible or correct for the values of 2015.

    Well, the idea is that if you take it seriously, the nation has to have a pretty strong consensus to make major changes to the way we do things. It limits the amount that short term reactionary politics can change things. You don't want some party pushing through something with poorly thought out implications for some petty political reason, or because some special interest pushed out a ton of ads. If you interpret it too loosely, it looses it's power. If something isn't working out, you can just change it.

  33. #33
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    http://thedailyshow.cc.com/videos/th...-on-glenn-beck

    Somewhat unrelated, but clips like this make me happy

  34. #34
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    Quote Originally Posted by Reid View Post
    http://thedailyshow.cc.com/videos/th...-on-glenn-beck

    Somewhat unrelated, but clips like this make me happy
    jesus ****ing chriiiist

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