June 26, 2013

It's the last day of the Supreme Court term.

Get ready to talk about same-sex marriage. Here's the live-blogging at SCOTUSblog. The action starts at the top of the hour.

UPDATE 1: DOMA. 5-4. Roberts and Scalia and Thomas and Alito dissenting. "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." "DOMA singles out a class of persons deemed by a State entitled ot [sic] recognition and protection to enhance their own liberty."

UPDATE 2: Here's the PDF of the opinion in Windsor. From the Scalia dissent, something I found looking for whether the majority applied heightened scrutiny:
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.
UPDATE 3: From Kennedy's majority opinion, there's a discussion of federalism, but it's not the basis of the opinion:
[I]t 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.
UPDATE 4: From the Roberts dissent:
At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
Kennedy's opinion doesn't use the word "bigotry." It says:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
UPDATE 5: The next case isn't about ssm. A unanimous opinion in Sekar, written by Scalia, about the Hobbs Act: "Attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act."

UPDATE 6:  The Prop 8 case is resolved on the standing ground,  "line up is 5-4: Kennedy dissents, joined by Thomas, Alito, and Sotomayor.... " The decision of the Ninth Circuit is vacated and remanded." Scalia provides the 5th vote with the liberal Justices. [ADDED: No, Sotomayor is also dissenting, and Roberts is in the majority. So it's a mix.] From the opinion: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

UPDATE 7: Here's Hollingsworth v. Perry, PDF, the Prop 8 case, written by the Chief Justice.
For there to be... a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury.
That's a totally well-established statement about standing, as most lawyers know (I hope!)

UPDATE 8: The lack of standing happened AFTER the District Court ruled Prop 8 unconstitutional. The losing party, California Governor Schwarzenegger, decided not to appeal, to accept the result, so only what the Circuit Court did must go.

UPDATE 9: Roberts, in Hollingsworth, says that without the governor as a party, the case continued with individuals who had intervened but were not ordered by the district court to "to do or refrain from doing anything." So there was nothing "personal and individual" about the case for them. They argued that they had a "''"unique," "special," and "distinct" role in the initiative process — one "involving both authority and responsibilities that differ from other suporters of the measure."'” But Roberts said that interest only had to do with "the process of enacting the law," nothing that came after that. "Article III standing 'is not to be placed in the hands of "concerned bystanders," who will use it simply as a "vehicle for the vindication of value interests."'"

238 comments:

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Mark said...

Yippee, we have gotten to the name calling portion.

Which means my side won the argument.

If jr is unaware of the reasons why his arguments are invalid, that he never paid attention to the many prior threads where this was explained.

Obviously he is either unable to understand or willfully ignoring that fact, in which case it suggests going through the dog and pony show another time is an absolute waste of time.

Baron Zemo said...
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Baron Zemo said...
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Baron Zemo said...

There is definitely a pendulum effect that swings from one extreme to another in the life of a nation.

Now the pendulum is swinging from the traditional morality to a libertine philosophy where anything goes. Jr is asking where do you draw the line.

He doesn't realize that there is no line anymore. It has been obliterated and where SSM marriage has gone so too will the polygamists and other more outre combinations. One mans perversion is another mans Saturday night.

Tolerance will never be enough. Total subjugation to the politically correct dictates of the libertines is the only thing that will suffice. To oppose same sex marriage will be characterized as a hate crime. A thought crime. Religious principles or a mere matter of taste expressed publicly will suffice to destroy you.

jr565 said...

Mark wrote:
If jr is unaware of the reasons why his arguments are invalid, that he never paid attention to the many prior threads where this was explained.

I've paid plenty of attention. And your side always argues the same thing, always with the same (lack of) logic.
You will similarly deflect from answering the question and call people asking it bigots because that really is the only argument you have.

Lets leave aside gay marriage and talk about other restrictions in marriage.Talk about those restrictions,and pretend that the question of gay marriage is not in play.
In THOSE cases can society restrict marriage. Why is that restriction not discrimination? And if marriage is a fundamental right, why are you for those restrictions? Are you a bigot if you are ok with THOSE restrictions? Why or why not?

chickelit said...

@Mark: It appears that you started the name calling at 2.36

Way to go!

Mark said...

Jr, you questions are irrelevant.

If you could get Althouse to answer that might be interesting, but I will follow her lead and laugh your questions off.

Enjoy your echo chamber.

Baron Zemo said...
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Baron Zemo said...

The Nutty Perfessor will not answer because she is Tim Donaghy on this matter.

She is not an impartial arbiter. Or even an honest one.

caplight45 said...

I appreciate Father Martin Fox for doing some very heavy philosophical lifting today. You have a keen mind and deep spiritual discernment.

Today's decision on DOMA is about what I expected. I find myself rather detached from the whole thing.

Over the next few years I predict there will be increasing agreement between the churches and the Lib/Progs to remove the church from any role in legalizing marriages. I am already hearing it couched in terms of "we do not work for the State," from some of my more leftward colleagues.


IMO-Liberal/Progressivism thrives on chaos. I content myself in knowing that, "Don’t be misled—you cannot mock the justice of God. You will always harvest what you plant," is as true today as it was in the first century when God gave the Word to St. Paul.

Baron Zemo said...

I think Father Fox is on to something.

The effect of these rulings will be to force religions to look inward. People who want SSM should find those denominations that would welcome it as some do. Which is fine as far as it goes.

But there are many who do not feel that way and their opposition will harden. In unpredictable ways.

Reaping and sowing should give some people pause.

Matt said...

jr565

It's quite clear you are opposed to gay marriage. But you have turned your opposition into a facile legal parlor game. Your tactics are clever but you seem like you are trying to achieve a personal victory. Why is that? Why not just say you oppose the Supreme Court and you oppose gay marriage?

Why must commenters on this blog satisfy your legal questions? Why does it matter? We are not Federal judges. We don't write the laws. You are barking up the wrong tree. Consider going to Washington DC where you can start a lobby group that directly works with law makers.

Methadras said...

Mark said...

jr, your babbling about marriage is insane. Desperate.

No one agrees with your points. Ann won't even dignify it with a response.

But do go ahead. You reaffirm the idea that your side is raving bigots.


And this is how it will go folks. Kennedy has set up the column for the newly affirmed status symbol of homosexual marriage via the destruction of DOMA to allow those that want SSM to label those that disagree with it to be labeled haters of humanity. The clarion call of bigotry notwithstanding from them. As if it stopped them prior to this decision. Now it just codifies it. Unfuckingbelievable.

Stephen A. Meigs said...

A few points:

1. Insofar as judicial decisions concerning sodomy are concerned, the most horrible decision was Lawrence vs. Texas. Marriage properly has to do with enforcing responsibility rather than demonstrating respectability. Sodomy doesn't screw up marriage, it screws up sex, whether married or not. Arguing that marriage is properly opposed to sodomy plays into the sodomizers' hands somewhat, because it confuses people into thinking lack of marriage partly screws up sex, whereas basically sex is screwed up if and only if sodomy is involved.

2. It is very bad to limit capriciously as SCOTUS has done the right of the people to amend their state constitutions. Actually, people ostensibly wanting things because of their "values" as "concerned bystanders" tend to want better things than people wanting things for selfish interests. Not everyone claiming values is a bigot. And people arguing for stuff like racism by pretending to higher purposes may be opposed by those with higher purposes. Consider what Harriet Martineau (a best friend of one of my abolitionist relatives) said in 1834:

...The Americans are practically acquainted with the old proverb,"What is every body's business is nobody's business." No man stirs first against an abuse which is no more his than other people's. The abuse goes on till it begins to overbear law and liberty. Then the multitude arises, in the strength of the law, and crushes the abuse.

Imagine taxpayer money going to a few corrupt interests, or polluters emitting air pollution that affects nobody strongly, or everybody being more susceptible to forcible sodomy because forcible sodomizers can escape punishment by pretending the sodomy was wanted. In none of these cases does any particular individual or entity have a selfish interest worth the expense and bother of appealing and thus I suppose a standing to appeal according to the SCOTUS Prop. 8 decision. But not having a selfish interest ought to suggest that the interest is likely unselfish and thus most worthy of being respected.

3. If anti-sodomizers ever get strong enough to pass an amendment to the United States Constitution allowing the States to make laws punishing sodomizers for sodomizing, they really ought to make sure there are provisions putting judges who try to block it in jeopardy of their lives, because if there is a civil war in this country, I figure the next one will be caused by some judge trying to block such an anti-sodomy amendment. Sodomizers tend to never, ever give up when they feel like they've violated someone, and they tend to be even more broad and confused than normal people about what such violation consists in. Whatever abuse sodomizers inflict upon Americans as a result of foolish court decisions the sodomizers will assume is sufficient to have warped Americans' psyche into a submission far greater than disinterested observation should suggest.

Methadras said...

Mark said...

Yippee, we have gotten to the name calling portion.

Which means my side won the argument.


So you think calling people you disagree with as bigots is a win for your side? If your side is any indication of what winning means, then we have lost.

jr565 said...

Matt wrote:
It's quite clear you are opposed to gay marriage. But you have turned your opposition into a facile legal parlor game. Your tactics are clever but you seem like you are trying to achieve a personal victory. Why is that? Why not just say you oppose the Supreme Court and you oppose gay marriage?

its not that I oppose gay marriage. Its that I oppose the arguments made by your side why we must have gay marriage. Your arguments are full of holes and completely serving.
Even the argument of equal protection, which I didn't bring up, is bogus.
Interracial marriage was a legitimate case where equal protection applied. Because a black man was still a man, and a white woman was still a woman. Having then marry doesnt change marriage. But in the case of gay marriage, equal protection was always there. Men can marry women just as always. In this case equal protection becomes, changing the fundamental of marriage to include pairings that were not legal before and saying those pairings themselves must be equal. No.

If you want to know where I stand on gays and marriage, I'm for civil unions for gays, because gays can't marry. Not because I hate gays but because marriage doesn't mean that. It would be like forcing a round peg into a square hole.

jr565 said...

Being for gay marriage means never having to explain your logic.

Baron Zemo said...

Forcing things into the wrong hole is what gay marriage is all about.

jr565 said...

mark wrote:
If you could get Althouse to answer that might be interesting, but I will follow her lead and laugh your questions off.

Enjoy your echo chamber.


Has althouse responded to you,yet either? Yet here I am willing to engage with you despite not getting word from on high that Althouse agrees or doesn't agree with you or me.
You won't defend your position until you get that notification? What if you never do? Does that mean you don't have to ever defend your position other than by calling your critics bigots? I'm willing to hear you out. Maybe you can give me a good argument that will make me rethink my position. Frankly, I've been waiting for one since the whole debate began.

Methadras said...

Mark said...

Jr, you questions are irrelevant.

If you could get Althouse to answer that might be interesting, but I will follow her lead and laugh your questions off.

Enjoy your echo chamber.


So in reality, your echo chamber appears to be where your head is firmly planted in your rectum. No need to plug your ears and yell LALALALALALALA I CAN'T HEAR YOU when your entire argument up above on legitimate questions asked of you look like this.

Methadras said...

Baron Zemo said...

The Nutty Perfessor will not answer because she is Tim Donaghy on this matter.

She is not an impartial arbiter. Or even an honest one.


You know what's funny? I wonder if her homosexual son will ever get married, but she's happy now that he can fill out the same tax forms that single people of any sexual orientation still do. Wow, what a win for us all. /rolleyes

jr565 said...

Mark, note though calling your critics a bigot doesn't exactly win you any points. Even less so when that is your only argument.
Your argument would be better served if instead of saying society CAN'T define marriage to be between a man and a woman, you argued society SHOULDN'T define it as being between a mana and a woman alone.
See the difference in the argument?
The former makes little sense because, why can't it? It can define marriage in any other way. Which is why I keep bringing up those other ways in which society can and does restrict marriage. If society restricts marriage in those ways, then its a dumb argument to say that society can't do it in other ways because of some absolute principle that only seems to apply to your changing of marriage restrictiona but to no other.

The better question is SHOULD society allow gays to marry. And here you'd have to argue the merits.and here, you might get some traction with me (since I have said I support civil unions after all). But if you do that you can't fall ack on the old, you're a bigot if you don't change marriage the way I demand argument. Or the marriage is an absolute right and you can't discriminate argument.

Do you want to have that argument instead? That society cannot restrict marriage in any way? I'd disagree, and I'd think most gay rights advocates would disagree, since they keep saying that gay marriage will still be only be two people. Bt that is a different argument.

Your side appears to be arguing that third argument, but somehow that it should only apply to gay marriage. Which is a ludicrous position. You keep getting snnoyed when critics of your position bring up pedophilia or polygamy, but the truth is you are bringing it on yourself because you are arguing MUST instead of SHOULD.

Mark said...

jr, rarely but yes she has. She tends to pay attention to well thought and relevant questions.

I have no interest in answering your questions so that we can score internet points in a quasi-legal game. I am not a lawyer and have enough respect for those who truly know law to not pretend to be one on the internet.

My time is worth more than that, as I do not find much enjoyment in answering your ceaseless questions. Are you up to 500 questions posed in this thread? Seems like it.

jr565 said...

Mark wrote:
"I have no interest in answering your questions so that we can score internet points in a quasi-legal game. I am not a lawyer and have enough respect for those who truly know law to not pretend to be one on the internet.

My time is worth more than that, as I do not find much enjoyment in answering your ceaseless questions. Are you up to 500 questions posed in this thread? Seems like it."

You seem to be spending an awful lot of time talking about how you wont answer my questions. Why not instead answer my questions since you are going to respond anyway? Is it because you don't have a good answer?

Mark said...

See jr, no one argues with you. You argue with yourself.

You have spent this whole thread putting words into the opposing sides mouth. It's a cute trick, but why would I want to engage in discussion with someone who has already misrepresented the opposing side.

I can say whatever I want, and you will put words or ideas into my mouth. Sorry, but your reputation here precedes you. I have never seen you discuss in good faith with the opposition, despite participating in hundreds of discussions here.

Matt said...

jr565

Its that I oppose the arguments made by your side why we must have gay marriage. Your arguments are full of holes and completely serving.

My side is the Supreme Court. Are they self serving? Perhaps. But surely that doesn't invalidate many of their other [recent] decisions, which I am sure you agree with.

I think some gays may be self serving. But from a legal perspective striking down DOMA is not. It's a legal interpretation which says the act was unconstitutioinal. And by extension that means gay marriage is [for the most part] legal. Depends on Prop 8 ruling.

jr565 said...

Matt wrote:
I think some gays may be self serving. But from a legal perspective striking down DOMA is not. It's a legal interpretation which says the act was unconstitutioinal. And by extension that means gay marriage is [for the most part] legal.

It's only legal in states which have legalized it (sometimes over the objection of the population of that state).
If the argument is to be a states rights one, then you have to allow for states to decide against gay marriage (or for it).

jr565 said...
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jr565 said...

Mark wrote:
"I can say whatever I want, and you will put words or ideas into my mouth. Sorry, but your reputation here precedes you. I have never seen you discuss in good faith with the opposition, despite participating in hundreds of discussions here."

And yet you refuse to say what you want. I haven't prevented you from doing so. As to the implications of your arguments, or the gay marriages rights arguments ,the implication is as I say based on my perspective. Come up with better arguments. I'm willing to listen to them.

jr565 said...

Mark wrote:
See jr, no one argues with you. You argue with yourself.

You have spent this whole thread putting words into the opposing sides mouth. It's a cute trick, but why would I want to engage in discussion with someone who has already misrepresented the opposing side.

I can say whatever I want, and you will put words or ideas into my mouth.

I'm not putting words in anyone's mouth. I'm testing the argument, which in my view is argued poorly.

Mark said...

Yes, jr you are arguing the other side's points very poorly. I agree with you there.

I don't see anyone else here arguing the points you are. Yes, your strawman is remarkably flimsy.

jr565 said...

Mark wrote:
How funny Rev Fox sees the oppression of populace by the federal government, but fails to see how his side is oppressing the populace from the statehouse.

Wisconsin, North Carolina, Texas .... you mimic the claims of the other side.

Seems to me more like the bloviating of people who want power over others than people being oppressed.

As an example of the shoddy argument is this. Who in this case is being oppressed. and who is "wanting power over ohters". it may seem to be only about gay marriage, but in fact is a much broader argument on your part. Or at least the implications are larger even though you don't recognize it or refuse to address it.
Marriage is defined as x. and there are a number of restrictions placed on it. Is everyone who can't marry because of those restrictions "oppressed"? Why not? And similarly, if you are for certain regulations (ie. banning underage marriages or poygamy) why is that not exerting power over others. Is that not the effect of the restriction?
And yes the federal govt as well as the state govt is restricting people and exerting power over others. That's what it does. But why are you expecting otherwise? If you are going to restrict marriage, then the people restricted are not going to be able to do what they want. In the case of gay marriage obviously they can't do that. But in the case of say, polygamy, they can.
Why is that not, in your mind, oppression? Since the effect is the same. People who want to get married can't.

Mark said...

"As an example of the shoddy argument is this."

Are you Yoda, or do you just use his grammar?

jr565 said...

Ok Mark, are you for govt, federal or otherwise restricting marriage in any way?
Why is that not the state wanting power over others and opressing them? pick whatever restriction you want other than gay marriage since you have a blind spot.
IF you are for the restriction are you not for govt exerting power over others and preventing those others from marrying?
Why are you not a bigot for doing that?
You can either say you dont think society should restrict marriage in any way (but then shouldn't argue when people bring things like polygamy to the debate) or you can say you are for those restrictions but somehow those restrictions aren't oppressive and the state isn't exerting power over those people.
And are you not a bigot if you are ok with that restriction? You certainly might be to those who cant marry because of it.

jr565 said...

As I callahan wrote about my argument:
"jr's point was dead on - any restriction on marriage is "oppression" on someone who wants to get married in a different way. And you called him a bigot."

Since you are awfully big on calling people bigots, I'm asking you where you stand on restricting marriage in other ways and if you are a bigot there for standing by those restrictions? Or are you one of those libertarian types that thinks marriage should have no restriction at all.
It's ok if you are, but at least state that position. And don't be mad if I then bring up polygamy or bigamy or whatever since you'd be against restricting those as well on the same grounds.
In other words, you're awfully short on principle, but awfully big no name calling.
If you're going to call people bigots then defend your principles. Otherwise you are just a cad.

Methadras said...

Matt said...

jr565

It's quite clear you are opposed to gay marriage. But you have turned your opposition into a facile legal parlor game. Your tactics are clever but you seem like you are trying to achieve a personal victory. Why is that? Why not just say you oppose the Supreme Court and you oppose gay marriage?

Why must commenters on this blog satisfy your legal questions? Why does it matter? We are not Federal judges. We don't write the laws. You are barking up the wrong tree. Consider going to Washington DC where you can start a lobby group that directly works with law makers.


I can't speak for jr565, but I think I can speak for his sentiment. This isn't about scoring a personal victory or scoring brownie points. This is about legitimate question of the future and how the face of our country will be ongoing with such decisions that are made without little regard to intent and weak-spined philosophical musings about legacy building on the backs of the American citizenry with how they will view SCOTUS in he future.

Outside of this being a blog about the law, these are the penultimate questions with this particular ruling facing us today. But because we are federal judges, in your mind, we are therefore not qualified to make commentary on their judgments to us? Sounds like you've already accepted your tyrannical governmental overlords. When you end up on the wall, we'll see how much you like their decisions then, meat shield of the left.

Methadras said...

wyo sis said...

I wonder if Alex will be as excited to see property owners crying in their cereal when prop 13 is overturned.
What can be done to one side can be done to the other when the tide turns.


Prop. 13 getting overturned would be an absolute unmitigated disaster not only for california homeowners, but for the US at large. If you thought the market taking a shit in 2008 was bad, you haven't seen anything if Prop. 13 evaporates. Man, I can't even fathom what will happen to senior citizens who own homes if Prop. 13 goes away.

I have always advocated a one time tax payment purchase on the price of property until it's next sale. There should be zero reason for yearly tax assessments on homes and land property. If there is justification I'd like to hear it.

Mark said...

OMG, the troll called me a cad.

Alas, my reputation among the commentariat is sunk.

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