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View Diary: Three Reasons You'll See More States' Rights Rhetoric Against Gay Marriage (23 comments)

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  •  really? (1+ / 0-)
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    bythesea

    Kennedy wrote the Lawrence main Lawrence decision.  The signatories included Breyer and Ginsberg. I would think Sotomayor and Kagen would go along.

    The only 2 I'm 100% sure will disagree will be Thomas and Scalia. Roberts I have no idea about, and Alito will probably disagree, but I wouldn't have a heart attack if he doesn't.

    These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

    by HugoDog on Fri Mar 22, 2013 at 11:58:54 AM PDT

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    •  Damn. (0+ / 0-)

      Obviously the first sentence should be "Kennedy wrote the  main Lawrence decision."

      These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

      by HugoDog on Fri Mar 22, 2013 at 12:00:02 PM PDT

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    •  I have a really hard time seeing (0+ / 0-)

      Kennedy declaring DOMA unconstitutional on Equal Protection grounds.  That would be saying that the 14th Amendment makes it mandatory on all states to legalize same-sex marriage.

      I don't think there are five votes for forcing all states immediately to legalize same-sex marriage on exactly the same basis as heterosexual marriage.  I don't see Kennedy, Roberts, or Alito going there.  Remember, Lawrence was a privacy case.  It said that sexual activities of adults were protected by privacy laws.  It struck down a sodomy law that was not gender-specific but was used to prosecute two gay men.  Even then, it did not strike down the law on Equal Protection grounds, but on privacy grounds -- that all consenting adults had the right to privacy with respect to their sexual activities.  This is an argument that the Equal Protection clause (passed in 1868) prohibits states from defining marriage the way that, until very recently, all states had always defined marriage.  That's a very different thing.  

      I DO see the possibility of one or more of those justices saying that the federal government does not have the power to tell the states how they must define marriage, and striking DOMA on those grounds.

      •  Lawrence was also a due process case. (0+ / 0-)

        And O'Connor's  concurrence is all about equal protection, not privacy.
        Scalia, of course, in his descent wrote that Lawrence would lead to same sex marriage.
        But then again, I'm not a lawyer, so I might be full of hot air about this.

        These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

        by HugoDog on Fri Mar 22, 2013 at 01:52:19 PM PDT

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        •  O'Connor is no longer on the Court (1+ / 0-)
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          VClib

          so what she wrote is not really all that relevant.  The opinion that matters is the one written by Justice Kennedy. If the four liberal justices vote to strike DOMA on Equal Protection grounds, then you need another vote on Equal Protection from Kennedy, Roberts, Alito, Scalia, or Thomas.  Since Scalia and Thomas dissented in Lawrence, you aren't going to get them to go a step beyond Lawrence.  The only opinion that matters is Kennedy, and his was all about privacy and liberty (the Due Process part was about liberty).  There was nothing in his opinion about Equal Protection prohibiting discrimination on the basis of sexual orientation.  

          Part of Kennedy's opinion was all about how the Texas law was an anachronism, that there were only nine states that still had laws on the books against "same sex relations" as he called it.  And that there was no justification for the law other than "morality" and that was overcome by the broad recognition over the past half century that adults are entitled to privacy in their sexual relations.   It would be a real leap from that to an analysis that says the Equal Protection Clause now suddenly means that the vast majority of states that define marriage as between a man and a woman can no longer do that because it's impermissible discrimination under the EP clause.  It's not just a matter of "he ruled in favor of gays in Lawrence so he'll do so here."  The important part is the justification, and this would call upon him to significantly expand the reach and effect of the EP clause, striking down long-standing laws (for most, since the the beginning of statehood) for most of the states in this country.  I just don't see him going there.  He's not a Justice who likes those broad, sweeping, far-reaching rulings.  I think it's much more likely that he strikes down DOMA simply by saying that marriage laws are one of those areas the Constitution left to the states, and states are free to change the parameters of who can marry if the states so choose.  

          •  Why couldn't another justice (0+ / 0-)

            write a concurring opinion based on another aspect of the law, like O'Connor did when she disagreed with the other justices and said Lawrence isn't a privacy issue at all? Doesn't that imply that votes don't all have to be based on the same reasoning or point of law, right?

            Besides, it doesn't seem any more of an expansion of EP than numerous previous cases, such as those about civil rights overthrowing centuries old laws and traditions, where the court then imposed levels of scrutiny for future jurisprudence.

            I hope I'm not coming across as argumentative. I'm just trying to figure this out. I really appreciate you spelling out your thoughts about this.

            These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

            by HugoDog on Fri Mar 22, 2013 at 03:11:36 PM PDT

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            •  What may happen -- just my guess -- (1+ / 0-)
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              VClib

              is that the four liberal justices take that extra step and find that the Equal Protection clause prohibits states from discriminating against same-sex couples in marriage laws.  That doesn't make it the law.  They need a fifth vote to strike DOMA, or it stands as law.  What I am thinking could happen is that Roberts and/or Kennedy provide a fifth and/or sixth vote for striking DOMA, but on a different basis, by holding that Congress can't define marriage for the states. The liberals would join in this.  So, you'd have five or six votes for the principle that Congress can't define marriage for the states, and that becomes the law of the land.  You have the four liberals saying I would ALSO strike DOMA on the basis that the Equal Protection clause prohibits discrimination on the basis of sexual orientation, but since there's no majority on that point, it is not precedent.  

              Here's why it it would be an extra step to rule on Equal Protection grounds.  The Equal Protection clause does not prohibit all discrimination.  Instead, discrimination must essentially (this is my paraphrasing) be justified.  There are certain kinds of discrimination where only the most compelling governmental interests will justify it, and the discrimination has to be pretty much the only way that you can accomplish some really compelling governmental goal. That applies to a "suspect class" and there are very few of those -- race, national origin, and religion. The Court looks at any law that discriminates based on those under "strict scrutiny" -- You can pretty much almost never justify discrimination on that basis.  Gender is not a suspect class -- it gets "intermediate scrutiny."  It's easier to justify laws that differentiate between men and women - you have to have an important government interest, and the law has to be substantially related to that important interest.  All other kinds of discrimination get "rational basis " scrutiny -- it only has to be a legitimate government interest, and the law has to be rationally related to that legitimate government interest.  It's pretty easy to meet a "rational basis" standard.  Laws are ok'd unless the Court decides that there's no legitimate reason for passing that law except some irrational attempt hatred of some group.  That's what happened in Romer v. Edwards.  Two progressive cities in Colorado had passed laws banning discrimination based on sexual orientation within those cities.  The rest of the state not only did not pass similar laws, they didn't want those two cities to be able to do what they wanted in those cities.  So the state as a whole passed and an amendment to the constitution that prohibited cities from banning discrimination based on sexual orientation.  The SCOTUS found there was no legitimate reason for that amendment other than an attempt to stigmatize homosexuality, so it struck the law down under a rational basis test.  That's pretty rare -- to do that, the Court has to decide that the law is based on pretty much nothing but animus for a particular group.   What's important is that the Court did not say that the constitution means that nobody can discriminate against someone based on sexual orientation.  It left the rest of the state free to keep discrimination based on sexual orientation legal.  It just said, you can't pass a law because you're mad at these two cities for doing something you disagree with.  

              Here's the deal.  If homosexuality were a "suspect class," like race, then the Court would be more likely to strike down really long-standing, widely-applied laws, just as it did in Brown v. Board of Education.  But it is not.  Even gender is not a suspect class.  In fact, the SCOTUS has not even said that homosexuality deserves "intermediate scrutiny" like gender.  One district court, and one appellate court did, in this case.  But the SCOTUS never has -- it used rational basis scrutiny in Romer v. Evans.  So, the first "extra step" would be to hold that homosexuality is subject to intermediate scrutiny.  Even if it goes there, and gives it intermediate scrutiny, it would be harder to justify invalidating a law -- saying marriage is between a man and woman -- that has been the law for a couple of hundred years and exits in all but a handful of states, on that basis.  

              I can see Kennedy and/or Roberts saying, Congress can't restrict a state if the state chooses to define marriage so as to allow same sex marriages.  That would be the ruling saying DOMA is unconstitutional because Congress can't tell states how to define marriage, that the Constitution left marriage up to the states.  I have a very hard time seeing Kennedy and/or Roberts saying, no state can define marriage the way that marriage has been defined for hundreds of years, until just a handful of states chose to change it in the last couple of years.  Neither justice is the kind who likes to issue very broad rulings, especially one like that, that would cause huge divisions in the country and in one swoop redefine one of the most "traditional" and long-standing societal institutions throughout the entire country, whether the country wants it or not.   They are both more likely (I would guess, from what I know about them) to rule on a narrow basis if at all possible -- i.e., that it's up to the states, not Congress -- and let the states, one by one (as is happening now) redefine marriage so as to include same sex couples.  That narrow ruling has the benefit (for them) of being based on a conservative principle (they are both conservatives) -- that principle being that the powers of the federal government are limited, and that if the constitution doesn't give Congress the enumerated power to do something, Congress can't just do it and impose it on the states.  

              All of this is just a guess.  I will be listening for the audio from the arguments before the Court.  

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