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View Diary: NYT: Conservatives were behind granting cert to Prop 8 case (22 comments)

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  •  Perhaps the conservative bloc feels (3+ / 0-)
    Recommended by:
    Aunt Pat, Loge, irishwitch

    That there will be five votes to hold that sexual orientation is not a suspect classification that requires strict scrutiny.  Maybe they will take that partial victory, even if DOMA is overturned (perhaps expecting that DOMA will be overturned), remanding the Prop 8 case for reconsideration in light of that.

    •  DOMA will be struck down and Prop 8 upheld (1+ / 0-)
      Recommended by:
      killjoy

      But, on net same sex marrage gets a 95% victory.

      Justices on the left and right prefer that the issue be resolved by legislators or voters, not justices to avoid a future of decades of fighting over the issue as abortion is.  That is a big problem when social issues are decided by judges instead of the political process.

      DOMA will be struck down on the basis that states have defined marriage since the country's founding and the law is therefore unconstitutional per the 9th and 10th amendment.  This is different than interracial marriage laws as the constitution addresses race but not sexual orientation.  Due to the 11th amendment, marriages performed in any state are to be recognized by all the states.  So if same sex marriage is not permitted in a state residents can marry in a state that allows it -- as would be the case if different states had different ages when people could marry.  The Federal government would then fully recognize same sex marriage.

      Prop 8 is upheld because the state has the power to change its constitution in ways that take away rights -- just as one had the right to polute the air and that right has been changed.  Justices who personally favor same sex marriage, see Prop 8 being dropped in the next California election.  

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Fri Mar 29, 2013 at 05:18:39 PM PDT

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      •  Say what?? (0+ / 0-)

        Your Prop 8 analysis is a bit unusual.  The case isn't about whether a state can take away a right, or more accurately, not in the way you've framed it.  There was never a right to pollute, for example, so maybe you want to re-think it or try explaining it more clearly.

        And I don't know where you see 5 votes to uphold Prop 8.

        •  Yeah, Kennedy sounded like he didn't think (3+ / 0-)
          Recommended by:
          Darmok, maf1029, madhaus

          the court should hear the case ... which leads me to think this will go 5-4 in a way that will have the effect of upholding the Ninth Circuit.

          The NRA's response to calls for responsible gun law reform: noun, verb, Second Amendment

          by Christian Dem in NC on Fri Mar 29, 2013 at 05:48:48 PM PDT

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        •  If the court rules the way I predict, I will (2+ / 0-)
          Recommended by:
          bogbud, Darmok

          write a diary about how this was all obvious, otherwise I will ignore I ever wrote this.  The common practice of all who predict :)

          The most important way to protect the environment is not to have more than one child.

          by nextstep on Fri Mar 29, 2013 at 11:05:22 PM PDT

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        •  I predict either overturning Prop 8 or a deadlock (0+ / 0-)

          such that the court throws it to the 9th Circuit and gets rid of the issue on standing to avoid a series of opinions with no clear majority.

          Having said that, we're probably mere years or even months away from a serious circuit split on this issue - the 9th avoided the heart of the issue by going to standing, but if somehow this ended up back there again and the constitutionality of Prop 8 were to be squarely before them, I'm almost certain they'd kill it.  (I don't remember the opinion - did they write a Prop 8 section to fall back on?).  SCOTUS will not ignore a serious circuit split - the case will be right back up there and, in the second term of a polarized presidency, it'll be before the same bench all over again; the conservative 4 won't retire, they've got many years left on the bench, and the liberals would be replaced by more Elana Kagans.

          DOMA is less clear... obviously, it dies if Prop 8 is overturned because the justices find a right to equal marriage.  But if they go with the fallback argument (unconstitutional to withdraw rights), then DOMA might live, since the fallback argument endorses the idea of state-by-state decisionmaking.  They could even split DOMA up into two parts, keeping it as to relations between the states but not as to the feds.  Or even keeping it as to the feds but not as to interstate recognition.  A couple ways to split that baby.  Still, the fallback argument will look shitty to history's eyes; I recognize that the argument had to be made to protect their own flanks - it's good damage control for Californians if they lose the nationwide equal marriage argument.  But it's an intellectually dishonest outcome and Kennedy often acts as though he has his legacy clearly in mind.  I'm just reading the tea leaves, but I just don't think they'll go there.

          "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

          by auron renouille on Sat Mar 30, 2013 at 09:58:02 AM PDT

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      •  No offense, but I think you're kind of a bit (0+ / 0-)

        off the mark here.  I like seeing people think these issues through, but civil rights cases these days tend to rely on precedent, even if the precedent is grounded in Constitutional principles.

        Anyhow, full faith and credit is rarely the right answer to a SCOTUS case these days.  It's nearly settled law at this point.  I know this looks like a full faith and credit issue, but I'll eat my shorts if they write a full faith and credit opinion re: DOMA.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Sat Mar 30, 2013 at 09:47:15 AM PDT

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    •  That would leave the trial court (1+ / 0-)
      Recommended by:
      madhaus

      judgment and injunction in place, striking prop 8, because it applied rational basis review and the court isn't reviewing the factual and credit itty determinations.  The Court can uphold the judgment on any basis in the record, though i suppose they could remand for retrial but the likely result is the same.  Even the conservative justices don't want to waste time with that.

      I think you're onto something, though -- it's conceivable to strike prop 8 and DOMA on rational basis plus, so they hear these cases and issue narrow rulings that don't establish precedent for nationwide SSM.  I'm leaning prop 8 gets kicked on standing (as it probably should), leaving the district court junction in place, and DOMA gets struck on rational basis grounds, a la Romer.

      Difficult, difficult, lemon difficult.

      by Loge on Fri Mar 29, 2013 at 06:02:02 PM PDT

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      •  I'm trying to figure out if it is possible (0+ / 0-)

        For DOMA to overturned due to federalism concerns, but for Prop 8 to be upheld, with the end result being that a state does not have to recognize same-sex marriages performed in its jurisdiction, but does have to recognize same-sex marriages contracted in jurisdictions where it is legal, due to the Full Faith and Credit clause.  This is how, I believe, common-law marriages are treated.

        That would be a scenario that I think fits within the range of the progression of American constitutional law, but I am unsure if there would be a majority for that.

        If Kennedy is displeased because he feels squeezed, I think that is the sort of unhappy compromise that might appeal to him as annoying both sides, if he can add in sexual orientation as not being a suspect classification as part of the reasoning.  By suggesting that the sociological data is new enough that a reasonable person can still be a bit skeptical of it, I think that lays the foundation for holding that a state choosing not to allow gay marriage passes a rational basis test.

        •  DOMA has two parts (0+ / 0-)

          The part before the court is the federal govt's ban on recognizing SSM.  The law allowing states to deny recognition to others' is unchanged unless the court applies heightened scrutiny.  Kennedy could find an enumerated powers argument, where the Feds have to defer to state marriage definitions.  That position wouldn't command 5 votes, which is prediction number two: lot of plurality opinions.

          I agree that's where the "data" argument goes, but the law looks at selective repeals of rights to certain classes of people more closely.  Rational basis could still strike prop 8 and DOMA, and each subsequent state-level challenge has to carry the procedural burden and couldn't ever argue a statute is discriminatory on its face. There's a statistically insignificant chance of prop 8 being upheld, the most that can happen is to order a retrial.  After those credibility findings in the district opinion, there's no basis for a remand with order to enter a directed verdict.

          Difficult, difficult, lemon difficult.

          by Loge on Fri Mar 29, 2013 at 08:36:49 PM PDT

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        •  So the most likely result is to punt on Prop 8 (0+ / 0-)

          by letting it be "overturned" due to a lack of standing that way there is no ruling on the merits one way or the other.

          You have watched Faux News, now lose 2d10 SAN.

          by Throw The Bums Out on Fri Mar 29, 2013 at 10:31:40 PM PDT

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