US Politics 3

[Piper]

I've read his opinion. I just think he's wrong.

In the part of the decision you quoted, he states that:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33.

That's just false. One absolute part of the historical core of the institution has been that it has been between a man and woman. If there is any one single core to the institution of marriage, identifiable throughout our history, it's that. Everything else has changed or morphed over time, but not that. So to claim it's not part of the "historical core" is just odd, particularly where he later acknowledges that "marriage in the United States traditionally has not been open to same-sex couples."

To claim that the "historical core" of marriage didn't include the fact that it was between a man and woman is just disingenuous semantics.

FLoW, I think you're reading the underline sentence wrong.

In your underlined sentence, he's not referring to "restrictions" on whether a man can marry a man or a woman a woman, and then saying those restrictions are not "part of the historical core of the institution of marriage." He's talking about something else. Let's look at the context.

This comes a couple paragraphs after this he said:

"The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality."

I think his point is that "gender . . . restrictions" in your underlined quote refers to these restrictions, like coverture, that restricts the right of one gender (the wife's) in marriage, something that is no longer a part of our marriage laws. It goes in parallel structure to his example of race restrictions of marriage (something that was prevalent in marriage in the United States, but not considered so fundamental it couldn't be changed).

[DanteGabriel]

No shit. And one factor the Court uses to answer difficult questions is the WILL OF THE PEOPLE.

And you seem to think the WILL OF THE PEOPLE is all it should be, when I'm not even convinced the WILL OF THE PEOPLE is actually against gay marriage. I think there's a pretty clear legal case to grant gay people the same rights that heterosexuals enjoy. There used to be no laws against workplace sexual orientation discrimination. Now there are. If the WILL OF THE PEOPLE had been obeyed, those laws would not exist. So frankly, the WILL OF THE (BIGOTED) PEOPLE can choke on a scabby cock.

And citing me the number of states putting anti-gay-marriage laws on the books tells me more about right wing activism and what a hot-button issue this is, and very little about THE WILL OF THE PEOPLE.

Supreme Court cases are replete with references to the will of the people. It is hardly a right wing thing.

Be that as it may, it still doesn't change my reading of Kagan's statements. Conservatives have been pissing and whining for years about "activist judges" and Kagan's statements, it seems clear to me, are meant as defense against further conservative whining. I'm sure she was asked a question about the WILL OF THE PEOPLE so that the Republicans could act appropriately outraged and Fox could make a shitty little scandal out of it if she answered the wrong way. Besides, all of that shit is just part of the Supreme Court confirmation kabuki. It indicates nothing to me about the role the WILL OF THE PEOPLE plays in jurisprudence.

You tried to use Kagan's ass-covering statement-for-effect as some kind of support for your argument. I'm saying that, as a piece of evidence, it doesn't rate very highly.

[Ser Reptitious]

Tempra,

For someone who claims to be in favour of gay marriage you sure seem to be arguing pretty vigorously against it!

[The Progressive]

http://www.religioustolerance.org/hom_marp.htm

In 1967, about 72% were opposed to interracial marriage. This was the year when the U.S. Supreme Court was legalized interracial marriage everywhere in the U.S. 14

The arguments raised so far by both tempra and flow are really ignorant.

[Tempra]

Tempra,

For someone who claims to be in favour of gay marriage you sure seem to be arguing pretty vigorously against it!

I haven't argued against it at all. I have said what the likely outcome is.

[Tempra]

http://www.religioustolerance.org/hom_marp.htm

The arguments raised so far by both tempra and flow are really ignorant.

Ignorant? Race gets strict scrutiny. Sexual orientation gets rational basis review. In which standard of review do you think the Court puts more emphasis on the will of the people?

[The Progressive]

Ignorant? Race gets strict scrutiny. Sexual orientation gets rational basis review. In which standard of review do you think the Court puts more emphasis on the will of the people?

That's not the point. The point is that interracial marriage became a fundamental right when SCOTUS went against established convention and popular sentiment.

Which basically debunked both yours and flow's argument.

[Ser Reptitious]

Tempra,

I haven't argued against it at all. I have said what the likely outcome is.

Really? Looks to me like so far in this thread you've raised only anti-gay marriage arguments and tried to shoot holes into pro-gay marriage arguments.

And why are you so convinced that "the will of the people" will be the deciding factor for the SCOTUS? Recent decisions such as Citizens United certainly don't seem to indicate any such thing at all.

But even assuming that you are correct, can you perhaps show some poll numbers that show an overwhelming majority of U.S. citizens opposing gay marriage? (For all I know you may be correct on that one, but I just would like to see some actual data!)

[Tempra]

And you seem to think the WILL OF THE PEOPLE is all it should be, when I'm not even convinced the WILL OF THE PEOPLE is actually against gay marriage. I think there's a pretty clear legal case to grant gay people the same rights that heterosexuals enjoy. There used to be no laws against workplace sexual orientation discrimination. Now there are. If the WILL OF THE PEOPLE had been obeyed, those laws would not exist. So frankly, the WILL OF THE (BIGOTED) PEOPLE can choke on a scabby cock.

And citing me the number of states putting anti-gay-marriage laws on the books tells me more about right wing activism and what a hot-button issue this is, and very little about THE WILL OF THE PEOPLE.

If Kennedy writes the majority opinion affirming the district court decision, he will of course mention that most of these anti-marriage gay laws are of recent vintage. If he writes overturning the district court decision, he will point to the near universal belief that marriage is between a man and a woman, going back thousands of years. Gay marriage is a recent issue. Only 5 states acknowledge gay marriage, and only around 5 nations recognize gay marriage.

And I have repeatedly said that the will of the people is ONE FACTOR to be considered and it DOES NOT trump the Constitution. You are just arguing for the sake of arguing at this point. It is quite clear that you are ignorant of how judges decide cases.

Be that as it may, it still doesn't change my reading of Kagan's statements. Conservatives have been pissing and whining for years about "activist judges" and Kagan's statements, it seems clear to me, are meant as defense against further conservative whining. I'm sure she was asked a question about the WILL OF THE PEOPLE so that the Republicans could act appropriately outraged and Fox could make a shitty little scandal out of it if she answered the wrong way. Besides, all of that shit is just part of the Supreme Court confirmation kabuki. It indicates nothing to me about the role the WILL OF THE PEOPLE plays in jurisprudence.

You tried to use Kagan's ass-covering statement-for-effect as some kind of support for your argument. I'm saying that, as a piece of evidence, it doesn't rate very highly.

I have virtually every decision by a judge either affirming or overruling a statute as evidence to support my argument. It is really a basic tenet of law that courts give deference to the people. It just happens, in this case, that the will of the people is against the position you support. That is the only reason you are making a big deal out of my statement.

[Ser Reptitious]

Tempra,

It just happens, in this case, that the will of the people is against the position you support.

Again, can we please get some data to support this claim?

[The Progressive]

It is really a basic tenet of law that courts give deference to the people.

People have already brought up how SCOTUS decisions on school desegregation and interracial marriage proved that this assumption is incorrect.

[DanteGabriel]

I have virtually every decision by a judge either affirming or overruling a statute as evidence to support my argument. It is really a basic tenet of law that courts give deference to the people. It just happens, in this case, that the will of the people is against the position you support. That is the only reason you are making a big deal out of my statement.

This "will of the people" argument works fine until it doesn't. Like anti-miscegenation laws or abortion. Your "will of the people" argument ignores the numerous times the Supreme Court has gone against the tide of public opinion. You yourself are either being willfully ignorant or just cherry-picking evidence to support your position. Elena Kagan making a show statement about "the will of the people" during her confirmation hearings is valid evidence of how jurisprudence is handled, but actual court cases on abortion, mixed-race marriages, and school segregation don't rate? How the fuck do you swing that one?

Have you got a real response to the point about "the will of the people" on mixed-race marriages at the time that the Supreme Court legalized them?

[Tempra]

That's not the point. The point is that interracial marriage became a fundamental right when SCOTUS went against established convention and popular sentiment.

Which basically debunked both yours and flow's argument.

Uh, the standard of review does not matter? It is near *IMPOSSIBLE* for a statute to survive strict scrutiny.

Also, I don't see how it debunks my argument. Gay marriage does not receive the same scrutiny as interracial marriage. Combine that with broad support for the anti-gay marriage stance, it is unlikely that Kennedy will vote to affirm the decision.

Did you see my quotation from Lawrence? In Bowers, SCOTUS upheld sodomy laws largely because all 50 states had laws banning sodomy. Lawrence overturned Bowers largely because the will of the people had changed (only 13 states had laws banning sodomy, of which only 4 enforced the statutes).

And, yet, you think citing to Loving v. Virginia, a case fundamentally different because it involves a suspect classification (race), somehow debunks that the court factors in the will of the people when making a decision?

[The Progressive]

But even assuming that you are correct, can you perhaps show some poll numbers that show an overwhelming majority of U.S. citizens opposing gay marriage? (For all I know you may be correct on that one, but I just would like to see some actual data!)

Wiki has some good links to various polls and numbers. Opponents still outnumber supporters in most polls, but the number are trending quite favorably for supporters.

http://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States

[The Progressive]

Gay marriage does not receive the same scrutiny as interracial marriage

Because you said so? I'm sorry but that doesn't even qualify as a rational argument at all.

Why woudn't gay marriage receive the same scrutiny as interracial marriage by SCOTUS?

[Tempra]

This "will of the people" argument works fine until it doesn't. Like anti-miscegenation laws or abortion. Your "will of the people" argument ignores the numerous times the Supreme Court has gone against the tide of public opinion. Have you got a real response to the point about "the will of the people" on mixed-race marriages at the time that the Supreme Court legalized them?

How does it ignore the exceptions? I have said NUMEROUS TIMES that it is a FACTOR. It is not definitive. Both Loving and Roe used strict scrutiny. That is not applicable here. And, if you've read Roe, you'd notice the long portion of the opinion where Blackmun went through the history of abortion. Abortion was permitted from the time of the Greeks until around 1860. The exact opposite is true for gay marriage. It has never been accepted by society.

Regardless, neither Loving nor Roe actually debunk my argument. The Court can give great deference to the people and still decide that the will of the people leads to unconstitutional results. I just doubt that it will happen in this case, and neither Roe nor Loving provides a close parallel to this case.

[Guy Kilmore]

I actually think that if it came to Kennedy to decide whether to uphold or overturn Prop 8, there is a good chance that he would vote to overturn.

I was listening to a program on MPR the other day and it was a discussion on the four most influential supreme court justices. During the QA the speaker made the following comment about Kennedy, "Kennedy likes rights, he likes rights of the indivuals, he likes rights of the corporation, if there is one thing predictable about Kennedy is that he tends to support decisions that uphold rights."

This might be my poor paraphrasing, but I think this is good news for those supporting the overturn of Prop 8, as it is about removing or restricting a right from a group of people.

ETA:

Here is the program I was listening too, it was really about the history of how the 4 schools of thought on how to approach intepretting the constitution came to be. I found it really interesting.

http://minnesota.publicradio.org/display/web/2010/08/04/midday2/

[Ser Reptitious]

Pax,

Wiki has some good links to various polls and numbers. Opponents still outnumber supporters in most polls, but the number are trending quite favorably for supporters.

http://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States

Thanks! Looks to me like there certainly isn't overwhelming public opposition to gay marriage and the trend is towards increased support. Seems to me that the Supreme Court could quite safely rule in favour of gay marriage then, especially if, as Tempra insists, public opinion is but one factor to be considered among many. In fact, there seems to be a very real chance that if the Supreme Court rules against gay marriage, it may find itself on the wrong side of public opinion about 10 years down the road!

All of which really makes you wonder why pro-gay marriage Tempra is absolutely, positively 100 percent convinced that the SCOTUS will rule against gay marriage? :unsure:

Tempra,

Gay marriage does not receive the same scrutiny as interracial marriage.

And what exactly are you basing that on?

[Former Lord of Winterfell]

FLoW, I think you're reading the underline sentence wrong.

In your underlined sentence, he's not referring to "restrictions" on whether a man can marry a man or a woman a woman, and then saying those restrictions are not "part of the historical core of the institution of marriage." He's talking about something else. Let's look at the context.

This comes a couple paragraphs after this he said:

"The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality."

I think his point is that "gender . . . restrictions" in your underlined quote refers to these restrictions, like coverture, that restricts the right of one gender (the wife's) in marriage, something that is no longer a part of our marriage laws. It goes in parallel structure to his example of race restrictions of marriage (something that was prevalent in marriage in the United States, but not considered so fundamental it couldn't be changed).

I get that. But I think what he's doing is selectively identifying those restrictions, and deliberately ignoring the elephant in the room. I mean, if you want a great example of that, look at Utah. They weren't permitted to enter the union until they eliminated bigamy, and his listing of "restrictions" doesn't address who you marry at all. Just sort of the "why". Which is why I think he's being unjustifiably selective in identifying the core principles of marriage in this country.

[The Progressive]

NPR has a segment about this ruling today, some highlights:

Northwestern University law professor Andrew Koppelman says U.S. District Judge Vaughn Walker increased the odds of surviving appeal by basing his decision on his finding of fact — something appeals courts usually defer to — rather than his interpretation of the law.

In his lengthy ruling, Walker said the voter-approved ban on same-sex marriage violated the constitutional rights of due process and equal protection, and prevented California from fulfilling its constitutional obligation to provide marriages on an equal basis.

"He did not say that as a matter of law, gay people are a protected class under the 14th Amendment," Koppelman said. "He said that as a matter of fact, the justifications for this law that were offered by its defenders rested on factually false premises. And it's very hard for a court on appeal to say he was wrong about that."

http://www.npr.org/templates/story/story.php?storyId=128994525