Skip to main content

View Diary: Daily Kos Elections Live Digest: 6/26 (374 comments)

Comment Preferences

  •  This paragraph makes my head spin: (2+ / 0-)
    Recommended by:
    wwmiv, AUBoy2007
    Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
    What I do know is that the indignitiy effected by laws like DOMA is not limited to the same sex couples some states allow to marry and their children. It is no less an indignity to anyone else who respects the fundamental rights Justice Kennedy articulated ten years ago today in Lawrence. Thus I also do not really understand what he means on the paragraph between pages 18 and 19. Is he really saying that states can create fundamental privacy rights that must be protected from Federal intrusion? Judy Miller got a raw deal on that basis.

    I worry that he's setting up Federalism as a sword for states. And that's just now how it's supposed to work. Then he cites to Loving. So, who the fuck knows.

    Ok, so I read the polls.

    by andgarden on Wed Jun 26, 2013 at 04:10:09 PM PDT

    [ Parent ]

    •  Honestly, I suspect the liberal justices were a (1+ / 0-)
      Recommended by:
      andgarden

      monderating influence on him.  (Which is why I was comforted that he was writting it, regardless of his impulses - it had to be something everyone would sign onto.)

      So he's giving as much as nod towards federalism as he can, but he can't base everything on it because then he's only writting a concurrance to the four liberal's equal protection decision.

      I think his nod to federalism is dicta pure and simple.  He'd love to go there, but in the end this is an equal protection/due process decision at its core.

      I suspect he focuses on those couples who are already able to get married because he's explicitly not writing a marriage equality is consitutionally mandated opinion - at least not yet.  So he's leaving aside broader themes but I think his language is clear - how many times did he mention the idea of "dignity."

      Will this case be used for its federalism concepts?  Maybe, but I don't know that it's as strong as you might fear.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Wed Jun 26, 2013 at 04:25:43 PM PDT

      [ Parent ]

      •  I think the conclusion (under the asterisks) (1+ / 0-)
        Recommended by:
        AUBoy2007

        confirms your reading. Which is why I am mostly happy.

        That said, listening to Kennedy at oral argument, I think we may win this next one on a gender discrimination basis. that's the argument that totally bypasses the "history and tradition" inquiry for substantive due process (assuming it is even necessary, which is up to Kennedy--see Lawrence ("times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.")).

        Ok, so I read the polls.

        by andgarden on Wed Jun 26, 2013 at 04:32:58 PM PDT

        [ Parent ]

        •  I was surprised there wasn't (1+ / 0-)
          Recommended by:
          andgarden

          really any mention of gender discrimination here.  Turns out there didn't need to be, but still.

          One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

          by AUBoy2007 on Wed Jun 26, 2013 at 04:41:59 PM PDT

          [ Parent ]

          •  By the way, Roberts is an extremist (1+ / 0-)
            Recommended by:
            AUBoy2007
            I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.
            He was thinking what I was thinking yesterday. So does Kennedy agree with him? That's for the next case.

            Ok, so I read the polls.

            by andgarden on Wed Jun 26, 2013 at 07:41:45 PM PDT

            [ Parent ]

          •  So too Scalia (of course) and Alito (1+ / 0-)
            Recommended by:
            AUBoy2007

            There were never 6 votes here, which is a disturbing--but well-known--change from Lawrence.

            Ok, so I read the polls.

            by andgarden on Wed Jun 26, 2013 at 08:02:44 PM PDT

            [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site