Skip to main content

View Diary: The Supreme Court won't uphold Prop 8, but ... (207 comments)

Comment Preferences

  •  Well there's the formula for such things. (9+ / 0-)
    We have five years of information to weigh against 2,000 years of history or more.
    When in doubt about liberties or freedoms or rights, be sure to give appropriate weight to the centuries over which it wasn't that way before deciding that the enlightened way of looking at things has any merit.

    "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

    by rfall on Tue Mar 26, 2013 at 12:41:15 PM PDT

    •  I laughed to think a supreme court justice ... (13+ / 0-)

      only assumes humankind has had a 2000 year history.

      "Your christianism is showing, your Honor."

    •  So can the Court rule on CA and not nationally? (3+ / 0-)
      Recommended by:
      rfall, mconvente, davidincleveland

      Verrilli had a real hard time explaining why it was important in terms of human lives that the CA case be resolved quickly but that the Court should wait for another case to deal with the remaining states.

      Too late for the simple life, too early for android love slaves - Savio

      by Clem Yeobright on Tue Mar 26, 2013 at 12:48:23 PM PDT

      [ Parent ]

      •  Yes (5+ / 0-)

        Either by kicking it out because the Pro-8 side doesn't have standing (the first issue they need to decide), or because Prop. 8 was motivated by anti-gay sentiment and as such falls afoul of Romer v. Evans.

        If it gets kicked out for standing, that's probably good news.  Why?  In addition to the obvious (marriage equality returns to CA) it means they decided that the DOMA case is a better vehicle anyway.

        They won't uphold it because they'd pretty much have to strike down DOMA, which is also overriding the will of people in equality states.  Only Massachusetts and Iowa were determined by court rulings (and attempts to change that court ruling in Mass. were overwhelmingly voted down by an elected legislature) -- the others were by legislation or referenda.

        They won't do Loving v. Virginia (or probably won't, it's not impossible) but they might do the 9-state solution by holding civil unions to be unconstitutional and that it's marriage or nothing.  This assumes that they want to do a 50-state ruling but don't think the consensus is there yet, so it's a positive outcome that basically says, knock off a red state and we'll consider declaring a right to marriage.

        And there's a lot of compromising.  Roberts wants to limit the commerce clause; what better way to do that than to knock out DOMA?  And a few years from now, he can vote in the 50-state solution and have that be his legacy, not Citizens United.

      •  yes (3+ / 0-)

        Basically, the federal appeals court in the California case ruled narrowly; they said that Prop 8 was not okay specifically because it preserved all the rights of marriage for same-sex couples, but reverted them to another name ("civil unions"). The court ruled that taking that step was naked discrimination--changing the name as a way of singling out gay people for discriminatory treatment. If SCOTUS upholds that ruling, it'll apply only to states where same-sex couples could at one time marry, then had right taken away only in name--and the only place that's happened in the U.S. is California.

    •  Well, if your goal is to preserve as much (4+ / 0-)

      peleoconservatism as possible, historical periods where anyone who wasn't white, male and straight are very attractive. I know several teabegger types who love historical novels for that reason.

    •  That was unfortunate for our side.... (6+ / 0-)

      ...it means right-wing rhetoric that has really no basis in the law whatsoever has penetrated the consciousness of at least one member of the Court. The idea that marriage has been a certain way for 5,000 years or 2,000 years should have any bearing on the legal question of whether the institution of marriage should be extended to same sex couples is ridiculous.

      So we have a mere five years of evidence versus 2,000 years of it being a different way. Honestly, I am not sure that this court would have decided Loving the way it was decided if it had been sitting at that time.

      I would like to be hopefuller.

      If you hate government, don't run for office in that government.

      by Bensdad on Tue Mar 26, 2013 at 12:59:30 PM PDT

      [ Parent ]

      •  Even the basis for that claim is doubtful. (5+ / 0-)
        The idea that marriage has been a certain way for 5,000 years or 2,000 years
        "Marriage" has been defined so many ways over that period to time.  Anti-gay supporters only have to look to their own Bible to see that line marriage, plural marriage, polygamy and the like were "normal" for much of the period covered by the Old Testament.

        But, then, consistency isn't their strong suit--cherry picking appears to be.

        "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

        by rfall on Tue Mar 26, 2013 at 01:05:46 PM PDT

        [ Parent ]

      •  "marriage? is an exchange of property in (3+ / 0-)

        many countries, woman for dowry and in the olden days women were property. Is THAT the traditional marriage Scalia means?

      •  Remember, this is NOT the question (4+ / 0-)
        the legal question of whether the institution of marriage should be extended to same sex couples is ridiculous.
        The question is not whether the institution of marriage SHOULD be extended to same sex couples.  At its most basic, the question is whether (and how) states can make the decision of whether the institution of marriage should be extended to same sex couples, or whether the Constitution takes that decision away from the states in all instances, or in certain instances.  

        Tomorrow, one question will be whether Congress can make that decision for the states (DOMA) or whether Congress exceed its power when it attempted to make that decision for the states.  

        So it's important to be clear -- the question of whether marriage SHOULD be extended to same-sex couples is not before the Court.  The question is the meaning of the Constitution.  Technically, you can really think that the institution of marriage SHOULD be extended to same sex couples -- and would vote for it, and campaign for it, if it came up in your state --  but still believe that the Constitution leaves it up to the states to decide that issue for themselves.  That's not an inconsistent position.  

        •  The Edmunds Act (3+ / 0-)
          Recommended by:
          Clem Yeobright, terrypinder, VClib

          that made polygamy a federal felony is the only law that I am aware of besides DOMA that regulates marriage at a federal level. And that was passed in 1882. It's important to remember though that the section of DOMA in question doesn't tell states how to enact marriage laws or who can and can't be married by a state. It says that the federal government will not recognize marriages except between one man and one woman.

          In my humble opinion, section 3 is going get thrown out like last night's leftovers under the equal protection clause. Section 2 needs to be thrown out under the full faith and credit clause, but that is another case, not the one before the court tomorrow.

    •  So how did they outlaw polygamy? (1+ / 0-)
      Recommended by:
      koNko

      Polygamy has many thousand years of human experience (and many Biblical texts) to recommend it. That didn't stop the SCOTUS from upholding anti-bigamy (anti-Mormon) laws, in Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878).

      I understand that Justice Sotomayor asked Olson during today's argument about the polygamy parallel. No indication of how Scalia would rule on polygamy. . . .

      •  Reynold's primary argument (1+ / 0-)
        Recommended by:
        Clem Yeobright

        Was that the ban on polygamy infringed his religious rights under the 1st Amendment. The court rejected the argument and found that religious belief is not the same as acting on religious belief. They also stated that polygamy had become illegal in the 1500s in England and there was no basis for it in modern society.

      •  With that being said (1+ / 0-)
        Recommended by:
        VClib

        I think that polygamy bans will eventually be struck down as well, as they were clearly passed in the United States in response to Mormonism, and religion is an immutable characteristic.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site