Gay Marriage At Scotus: One Wedding Ring Thread To Rule Them All...

[jwhitlock]

They may have "skewered" it perhaps but they lost as did other opponents of marriage equality.

Oh and your comment about "activist" rulings us better said "I don't like what the constitutional process resulted in so I will label it something other than what it really was."

 

From Scalia (who happens to be a Supreme Court Justice):

 

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

 

 

That's what it really was.

[california boy]

Yet that's a very different tone than how it's usually presented. There's always an emphasis on the individual, and their rights without any regard to responsibilities.

At this point, there is no contract when it comes to the government. There is no negotiation. There is only what the government decides you're "allowed", and the constraints it places on what you are "allowed".

The SCOTUS ruling today is the very embodiment of that government attitude. As Scalia put it in his dissent:

Isn't that what happens EVERY TIME the court rules against an unjust law? Is Scalia suggesting the Supreme Court close up shop and no longer rule on anything?

[jwhitlock]

While I'm on a roll with Scalia and the dissent, here's another quote:

 

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

 

[jwhitlock]

Isn't that what happens EVERY TIME the court rules against an unjust law? Is Scalia suggesting the Supreme Court close up shop and no longer rule on anything?

 

Since the term "unjust law" is highly subjective, and especially so in this case, your conclusion is flawed.

 

However, if you read Scalia to understand, he's talking about SCOTUS overreaching what it is allowed to do. Indeed, the significant flaw in today's ruling that should be of concern to everyone is that the government has basically said that the will of the People (and I liked that he capitalized it) can be overridden at any time by the majority of an unelected committee of lawyers.

 

That's disturbing.

[bluebell]

I don't think that anyone is saying the courts are perfect. Are you suggesting that approving of slavery is comparible to upholding equal protection clause? If not, what is your point in bringing up Dred Scott?

 

My point, which i made earlier, is that the supreme court ruling does not mean that a law is 'just' or 'unjust'.  I think we can all agree that slavery is always unjust, regardless of the supreme court once decided.

 

A supreme court ruling is just the majority opinion of the justices and nothing more.  It happens to be legally binding for the entire country so that makes it important and gives it more weight than any other opinion but it doesn't decide what is actually 'right' and what is actually 'wrong'.   The government doesn't have that power.

[jwhitlock]

Here's another very thought provoking quote from Scalia:

 

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans, or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis;they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

 

[Teancum]

From Scalia (who happens to be a Supreme Court Justice):

 

 

That's what it really was.

From Scalia (who happens to be a Supreme Court Justice):

 

 

That's what it really was.

Well Judge Scalia seems to thing the SC is irrelevant then since its role is to determine the constitutionality of laws when such constitutionality comes into question. Why then is he a SC Justice? I wonder if he feels the same way when the SC decides in favor of his position.

[Teancum]

While I'm on a roll with Scalia and the dissent, here's another quote:

The quote by Scalia is nothing but a pout, Does he have some legal basis for his dissent?

[jwhitlock]

Well Judge Scalia seems to thing the SC is irrelevant then since its role is to determine the constitutionality of laws when such constitutionality comes into question. Why then is he a SC Justice? I wonder if he feels the same way when the SC decides in favor of his position.

 

You're not reading the quotes for comprehension if you're making a statement like this.

[jwhitlock]

The quote by Scalia is nothing but a pout, Does he have some legal basis for his dissent?

 

Does a Supreme Court Justice have any legal basis for a dissent he writes?

 

You're really outdoing yourself this time.

[jwhitlock]

Here's another perspective from Chief Justice Roberts - not that it has any legal basis, according to SSM supporters:

 

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

 

[jwhitlock]

And while we're on Roberts' dissent:

 

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”

 

[Kenngo1969]

The quote by Scalia is nothing but a pout, Does he have some legal basis for his dissent?

Hmmm.  Okay, I guess.   If Justice Scalia is doing nothing more than pouting, what about the other three dissenters?

[jwhitlock]

And here's what Roberts writes in his dissent about plural marriage; rather thought provoking. It appears that the majority on the court has dug itself into a bit of a quandary.

 

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

 

 

 

When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

 

[jwhitlock]

Hmmm.  Okay, I guess.   If Justice Scalia is doing nothing more than pouting, what about the other three dissenters?

 

Well, pouting has already been used, along with no legal basis for such dissent. Maybe they're just alarmists. Or out of touch. Or they're old and don't recognize that they need to be progressive, like the European courts.

 

Heaven forbid that they might actually see the danger in an unelected court abusing its power to overrule the will of the People and the constitutional process.

[tonie]

Unless Roberts, Scalia or the other dissenter address Loving - which was the Supreme Court changing the definition of marriage, then they have no legal basis.

I have not read the dissent, I will as I am curious how they addressed the equal protection aspect.

If we follow scalias line of reasoning, then the why not just theow out Marbury v Madison.

[filovirus]

Excuse my ignorance, but does the LBTG community now have all the same rights as straight people? Or are we still going to hear the term "gay rights"?

[Teancum]

Well, pouting has already been used, along with no legal basis for such dissent. Maybe they're just alarmists. Or out of touch. Or they're old and don't recognize that they need to be progressive, like the European courts.

 

Heaven forbid that they might actually see the danger in an unelected court abusing its power to overrule the will of the People and the constitutional process.

It is called the Constitution. Today's process was absolutely constitutional. The court is there to rule on such cases just like they did today as well as many other days in the history of our nation. Ther have been other unpopular rulings and bad ones as well. Some of the bad ones you ,ah have cheered. Today's may be bad as well. I don't know. But that is the system we have. And it is totally Constitutional. If the people are not happy about today's decision there is a process to fix this. Vote in an elected congress that will propose an amendment to the constitution and take it to the people.

[Teancum]

Hmmm.  Okay, I guess.   If Justice Scalia is doing nothing more than pouting, what about the other three dissenters?

I have not read all of Scalia's dissent but what is posted here is does not seem to contain legal argument. Just his angry words.

[Teancum]

And while we're on Roberts' dissent:

Why didn't Roberts apply this to his two rulings on the ACA?

[Teancum]

Does a Supreme Court Justice have any legal basis for a dissent he writes?

You're really outdoing yourself this time.

Huh? You think I am "outdoing myself" whatever the heck that means?

A judge should make legal arguments in their dissent should they not? While I am not an attorney I read lots of law in my work and have read plenty of dissenting opinions over the years and they typically make a legal argument for their dissent.

You think I am that passionate about this issue? I am not opposed to same sex marriage but think states should be able to decide. However I am not silly enough to argue that today's process was unconstitutional. It was about as much as such as it gets. Your argument seems to be that you just don't like the outcome.

Really if it is not the role of the Supreme Court to rule in cases that are brought to it and it determines that they should accept and review the case what is their role?

Edited June 27, 2015 by Teancum

[SmileyMcGee]

It wasn't me reporting the divine apparition of a rainbow over the capital. Just noting such things are a common phenomena to those who wish to sanctify their position.

True, now remember that when you think God has performed some miracle in your life....or will you cherry pick?

[Stone holm]

And here's what Roberts writes in his dissent about plural marriage; rather thought provoking. It appears that the majority on the court has dug itself into a bit of a quandary.

The problem here is that there are reasonable secular arguments that could be made against plural marriage that were not available against SSM. However, there may well be a poligamy case and, unfortunately Dalin Oaks and his Christian Right allies may well have paved the way for the overturning of US v Reynolds with there pushing for State RFRA statutes. The one in Indiana might very well be used by an FLDS member someday to seek such a ruling.

[jwhitlock]

Excuse my ignorance, but does the LBTG community now have all the same rights as straight people? Or are we still going to hear the term "gay rights"?

 

They've had the same rights as straight people for a long time.

[JLHPROF]

Excuse my ignorance, but does the LBTG community now have all the same rights as straight people? Or are we still going to hear the term "gay rights"?

 

Well gender and race rights are still considered an issue by many.