The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state. A total of two-and-a-half hours was allocated for the hearings, likely in the April sitting. A final ruling is expected by early next summer, probably in late June.ADDED: This simultaneously boring and exciting. It might be the most exciting boring thing or the most boring exciting thing I've ever seen the Court do.
AND: "In a statement issued on Friday, U.S. Attorney General Eric Holder said the Justice Department will file a friend-of-the-court brief calling for gay and lesbian Americans across the country to be able to marry." Good!
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63 comments:
I predict the Court will find that gay marriage has been a constitutional right since 1789 but no one ever noticed.
Do we really need the court to hold a hearing?
Is there actually a judge who hasn't already decided on this?
The writing's been on the wall since Kennedy cast the deciding vote in Windsor. Roberts had to destroy direct democracy in California in Hollingsworth to prevent AMK from imposing a 50-state solution in the process.
@eric
There is a court that went the other way, creating a split in the circuits, which tends to be a reason for the Supreme Court to take a case.
It will be interesting seeing on what grounds gay marriage is permissible. How will they find it and not find plural marriages acceptable?
It is sort of like the abortion for sex selection debate. Once you say there can be no restrictions, there can be no restrictions. No fair having restrictions you like but not restrictions I like.
And, to tie the two topics together, eventually they will find the gay gene. Once they do, women will abort to avoid having gay babies.
This assumes that homosexuality is innate, not simply learned behavior. Jury is still out on that one. Of course, if it is not innate, then why should be be protected by discrimination laws?
I'm getting dizzy. I need to go lie down for a bit.
OT but Mesquito, Are you impersonating Bob Wills?
Please remind Ann that it don't matter who's in Austin. Whenever she goes there, she must remember that you are King.
John Henry
the power of the states to ban same-sex marriages
The Constitutional question isn't about banning gay marriage at all -- it's whether the Constitution requires state governments to extend recognition to monogamous gay marriages in the same fashion as they recognize monogamous heterosexual marriages.
Or are there statutes out there penalizing homosexuals for holding themselves out as married to their partners? Like some sort of marriage fraud statute? Is that what this is about?
@Mesquito,
Thank you for putting humorously what I would have put ponderously.
For black Americans to have full rights as citizens, it took a 5 year civil war & a constitutional amendment. For women to have the vote, also a constitutional amendment. Prohibition came & went by constitutional amendment.
But SSM? It seemed to have come by means of 8 seasons of Will & Grace. Even states that forbade SSM by constitutional amendment had those clauses nullified by judges that ruled "Oh, look, we've found this right to SSM hidden in the federal constitution covered up by the dirty socks at the bottom of the drawer for all these years".
I suspect that we're looking at a SCOTUS decision that'll give us another winner like Roe v. Wade, a decision that even liberals look back on and say "oh, lordy, wasn't that a piece of shit example of legal reasoning?".
My prediction:
The court will find that states are not required allow same-sex marriages, but that the "full faith and credit" clause of the Constitution requires that they recognize same-sex marriages performed in other states.
That makes same-sex marriage the modern version of getting married in Vegas to avoid local requirements.
Or are there statutes out there penalizing homosexuals for holding themselves out as married to their partners?
I know there is for polygamy. You can shack up with a dozen women and have kids with all of them, but if you claim to be married you're breaking the law.
So we're now allowed to express that this is boring without you front-paging our remarks in some attack piece that misrepresents us as homophobic?
Just checking. Because you still haven't apologized for that little tantrum.
Re: Revenant:
I know there is for polygamy. You can shack up with a dozen women and have kids with all of them, but if you claim to be married you're breaking the law.
Well yes -- polygamy is actually banned, with criminal penalties to boot. Similarly, interracial marriage was actually banned -- to quote from Loving v. Virginia:
In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail.
This is hardly the situation with gay marriage today.
So where are they going to find the penumbra this time?
PuertoRicoSpaceport,
This assumes that homosexuality is innate, not simply learned behavior. Jury is still out on that one. Of course, if it is not innate, then why should be be protected by discrimination laws? I'm getting dizzy. I need to go lie down for a bit.
Well, are only "innate" characteristics worthy of being protected by anti-discrimination laws? Is religion "innate" or would it qualify for what you are calling "learned"?
I'll one-up Holder.
Can I submit a "fuck-buddy-of-the-court" brief?
Re: Gahrie:
So where are they going to find the penumbra this time?
If they find one it will probably just be that sex-based classifications are subject to intermediate scrutiny, and either (a) the government interests furthered by recognition of traditional heterosexual marriages are insufficiently important to justify use of a sex-based classification, or (b) the limitation of "marriage" to heterosexual pairs is not sufficiently closely related to the government interest furthered.
I suppose the Court could claim no rational basis, as some lower courts have done, but I think they have too much self respect to embarrass themselves that way.
Holder supporting selective rights. Predictable. The Court's liberal elements will probably discover a right in a penumbra and will rule for selective exclusion in following with their disposition.
Anyway, the State's compelling interest is to secure taxable assets (e.g. homosexual couplets) and to reduce the problem set (e.g. abortion). The Party's compelling interest is to sponsor selective exclusion in order to marginalize its competition and neutralize its competitors.
So if they ultimately find that it is unconstitutional to use historical/cultural definitions in deciding what does and does not constitute a marriage (because it doesn't match whatever particular brand of scrutiny they pick), I'm curious what the potential ramifications may be.
I mean everybody throws out the issue of polygamy when discussing the subject given that both issues involve matrimony, but I'm trying to think what other definitions are based upon such cultural assumptions.
Justices Kagen and Ginsburg have both officiated at same-sex weddings. They should recuse themselves from this case.
It's amazing that we abused Blacks for so long under the Constitution and then gays for even longer. When it comes to reparations, we owe gays more than we owe the children of slaves, though the gays have fewer progeny to benefit from the reparations.
Someday in the future, Amerikans may realize how much they've been infringing the rights of singles and non-breeders for generations. While singles might have descendants who could benefit from reparations, the child-free of course don't.
This is hardly the situation with gay marriage today.
I'm just saying that I don't know if it is or not.
It used to be that shacking up with and impregnating a bunch of women at once was illegal. Now it is legal, you just can't claim to be married.
It used to be that shacking up with another guy was illegal. Now it isn't. Whether you're allowed to describe yourself as "married", I dunno. I can see there being state or local ordinances forbidding it.
Justices Kagen and Ginsburg have both officiated at same-sex weddings. They should recuse themselves from this case.
Unless they officiated same-sex weddings in states that banned it, there's no conflict of interest.
Christopher said...
I'm trying to think what other definitions are based upon such cultural assumptions.
How about male and female? See the discussions earlier about the vagina monologs.
John Henry
Bobby,
Good question about why religion should be protected. It is not innate and we could argue that it does not merit protection.
OTOH, we do guarantee freedom of religion, as well as freedom from religion so there is perhaps the non-discrimination laws are there to protect those rights.
There is no right to be gay in the Constitution.
Or even to be married.
John Henry
"...calling for gay and lesbian Americans across the country to be able to marry."
Gays can already marry lesbians...
"I suppose the Court could claim no rational basis, as some lower courts have done, but I think they have too much self respect to embarrass themselves that way."
Kennedy's desire to be on the Progressive side of history will easily trump such embarrassment.
As Mesquito said, it's been there all along, we've just failed to notice.
Everyone gets to formulate their own concept of existence, of meaning, of the universe, and of the mystery of human life, except the majority of voters in anti-SSM states.
This should produce a maudlin opinion by Kennedy and a bitter and funny dissent by Scalia.
Muslims and Mormons will then push for polygamy through the court system as a fundamental right and as a violation of free exercise of religion on the grounds that marriage is symbolic expression and not conduct based on Kennedy's schwarmerei.
Re: Revenant:
I can see there being state or local ordinances forbidding it.
I'll grant it's not impossible, but in most places where that might be the case, sodomy would already have been illegal until quite recently, and gay marriage no more than the punchline to an joke, so I'd be very surprised if there are any places in the US where it would be illegal for a gay or lesbian couple to hold themselves out as married. Ten or twenty years ago, it would literally have been so absurd no one would think to bother banning it.
What I suppose I could imagine is some species of welfare fraud charge where one member of the homosexual married couple is transgender, e.g. lesbian couple where one member is biologically female posing as male and claiming spousal social security. Or something like that.
There is no right to be gay in the Constitution. Or even to be married.
While we're on the subject of "tradition", our traditional legal system has never held that rights only exist if mentioned in a Constitution, nor has it held that rights may be freely restricted for any reason the government pleases provided no Constitution forbids it.
For example, lots of conservatives have been complaining, recently, that the state governments are forcing bakers and hairdressers to do work for same-sex marriage ceremonies. There's no ban on state-level religious discrimination in the Constitution, nor is there a ban on states restricting freedom of association... but for some reason an awful lot of conservatives seem to think their rights are being violated.
They're right, too. Most of the rights we as people possess aren't mentioned in the Constitution. That's one reason why some of the founders were reluctant to create a bill of rights -- they knew people would take it as an exhaustive list of rights, and it isn't.
Oh, I guess I can also imagine a police officer assuming it must be illegal for a gay couple to hold themselves out as married, and trying to arrest someone for it even if it's not illegal. Police officers try to arrest people for all kinds of stuff that isn't actually illegal.
gay marriage no more than the punchline to an joke, so I'd be very surprised if there are any places in the US where it would be illegal for a gay or lesbian couple to hold themselves out as married
I doubt homosexuals would have been specifically singled out, but it is easy to see why there might be laws forbidding people from claiming they are married when they don't have a valid marriage license. But again, I have no idea.
Good? No. This is not how this issue should be decided. We resolve such questions through the democratic process. When the courts find a long hidden right overturning centuries of practice -- as they did with abortion -- a large segment of the population rightly feels its views were ignored. The result alienation and a long running dispute with no possible resolution.
Contrast this with the the civil rights struggles in the 60s. For the most part, that question was resolved through the democratic process. While feelings ran high on both sides of the debate, the democratically adopted solution has largely been accepted. Where there is still controversy -- affirmative action -- the solution was imposed by administrative fiat and by the courts.
For the SSM question to be resolved, the answer must come from the people. If it comes from the courts, we'll be arguing about SSM 50 years from now.
When the courts find a long hidden right overturning centuries of practice -- as they did with abortion -- a large segment of the population rightly feels its views were ignored.
Bad example. Roe. vs. Wade overturned a little over one century of practice. For virtually all of human history, the notion that a fetus counted as a person would have been considered ridiculous.
I'm no lawyer, but my argument against gay marriage is simple. Marriage is a Holy Sacrament defined by the Church. The state adopted the definition for their purposes, but that does not give them the right to redefine a religious term or sacrament.
This should produce a maudlin opinion by Kennedy and a bitter and funny dissent by Scalia
Maybe more than funny it will also be well-reasoned and incisive about it, and where the Court is apt to take the 14th Amendment next.
Re: Revenant:
I doubt homosexuals would have been specifically singled out, but it is easy to see why there might be laws forbidding people from claiming they are married when they don't have a valid marriage license.
That would surprise me rather, given the long tradition of common law marriage in the US, but it's certainly not impossible.
For virtually all of human history preceding the advent of science, the interest wasn't in a "fetus" but in the pregnancy. A pregnancy was cherished because people intuitively understood that there was a one-to-one relationship between pregnancy and human life. It was also understood that there was a one-to-one relationship between heterosexual sex and pregnancy. Without formal training science, they rejected the modern fairy tale of spontaneous conception.
Conversely, liberal societies have debased human life, describing it as a "fetus" or a clump of cells, and preaching a fairy tale that human life is the product of spontaneous conception. Feminists (both female and male) have profited from this fairy tale, which acts as an opiate for men and women seeking relief from the "burden". As well as fulfilling the state's demand for taxable assets and reduced problem set. And the Party's demand to marginalize and neutralize its competitors. These men and women pledge their honor, money, and votes in order to secure this relief; and feminist leaders are politically and financially empowered by their faithful following.
In the past, squeamish parents told their children that babies were delivered by storks. Today, ambitious, greed, and ruthless feminists tell adult men and women that babies are the product of spontaneous conception (the pseudo-scientific substitute for the fabled stork). They hold rites to decapitate and dismember human sacrifices a la Islamic terrorists.
Bad example. Roe. vs. Wade overturned a little over one century of practice. For virtually all of human history, the notion that a fetus counted as a person would have been considered ridiculous.
Are you suggesting that abortion was only been against the law starting 100 years ago? That's funny. I would have sworn that intentionally terminating a pregnancy was outlawed in most societies for millennia.
That would surprise me rather, given the long tradition of common law marriage in the US
Yeah, good point.
Are you suggesting that abortion was only been against the law starting 100 years ago?
States gradually banned it between the 1820s and 1860s; by the end of the 1860s it was illegal (to varying degrees) everywhere in America. In the 1960s it started to become legal in parts of America, and in the early 1970s it became legal everywhere.
Thus my statement: "a little over a century".
That's funny. I would have sworn that intentionally terminating a pregnancy was outlawed in most societies for millennia.
And you are hilariously wrong about that.
The court will find that states are not required allow same-sex marriages, but that the "full faith and credit" clause of the Constitution requires that they recognize same-sex marriages performed in other states.
That would be Solomonesque. It won't happen.
After a decade being told that children have nothing to do with marriage or about a sexual relationship between a man & a woman...
The CDC reports "Married Women Are Having More Kids. Unmarried Women? Not So Much"
http://www.wsj.com/articles/BL-REB-30165
Redefine it & force it on religious groups, while the government & public policy fully acknowledges & favors the heterosexual form for objective reasons not derived from orientation, but sexual behavior that opens itself to children.
Good artcle on how the haves & havesnots.
The politics of any decision wil be interesting. 7 months after the june decision is the iowa caucus. Does anyone think the decision won't have an effect on voting?
It will be a big issue whichever way the Supremes rule.
John Henry
Don't be fooled by the media's one-sided reporting on DeBoer v. Snyder.
Tonight I watched the NBC Nightly News report that "36 states had legalized same-sex marriage." That's a lie. A handful of states have legalized same sex-marriage. A select few federal judges with lifetime appointments have imposed same sex marriage on about 30 states. And the barest of majorities on the Supreme Court overturned DOMA, forcing the federal government to recognize the same sex marriages performed in states where it is legal.
You'll be hearing about how many courts have taken the side of same sex marriage, with the implication that the two-judge majority on the Sixth Circuit Court of Appeals were outliers. Don't believe that one either. In just about all of the circuits, there have been vigorous dissents opposing the judicial imposition of same sex marriage. It is by no means 'virtually unanimous' or even an 'overwhelming majority' of same-sex proponents among the federal judiciary. It is a narrow majority; and it is a principled and well-founded opposition within that same federal judiciary.
Revenant mocked: And you are hilariously wrong about that.
The Hippocratic Oath explicitly forbade doctors from performing abortions for millennia and so DKWalser isn't a wrong as you smirked. :)
We should simply short cut the process and have the SCOTUS write and enact legislation. What is the purpose of Congress or State Legislatures if they can simply create new laws as they go.
Maybe they will find marriage a tax and have the IRS decide.
...calling for gay and lesbian Americans across the country to be able to marry.
They already can. Always have been able to.
Ann Althouse wrote;
"There is a court that went the other way, creating a split in the circuits, which tends to be a reason for the Supreme Court to take a case."
Yes, I get that.
But so what?
Why have lawyers and judges waste their time? To uphold the pretense that the judges minds aren't already made up?
The proponents for the redefinition of marriage have already let the genie out of the bottle. While it make take a century, they have successfully destroyed marriage and created something new from it.
The Supreme Court has no power here to reverse this. The Federal Government now allows same sex married couples to immigrate. A US Citizen male no longer needs a female to pay him for the fake marriage, now guys can pay males too.
If the Supreme Court says it's up to the States, this will cause havoc. Same with people who move from a State that allows it to a State that doesn't allow it. Plus, think of all those people who were pronounced "Married" when the courts found in their favor and the governments rushed to start marrying people.
All of that is going to be overturned by the Supreme Court?
What sort of fools do you take us for?
Drop the pretense, slam down the gavel, and announce marriage for everyone and everything. Even the lady who wants to marry the dolphin.
The pretense helps no one.
It just keeps college law professors employed.
PuertoRicoSpaceport.com said...
The politics of any decision wil be interesting. 7 months after the june decision is the iowa caucus. Does anyone think the decision won't have an effect on voting?
It will be a big issue whichever way the Supremes rule.
And yet, the Republican party won big in the off-year elections by running against Obamacare and immigration "reform". Since then, the GOP leadership has said publicly that there's not much they can do with Obamacare, and I am hearing rumblings that they are working on "comprehensive immigration reform". No wonder people vote for leftists, at least they're honest about what they're going to do once the get in power.
Revenant mocked: And you are hilariously wrong about that.
The Hippocratic Oath explicitly forbade doctors from performing abortions for millennia and so DKWalser isn't a wrong as you smirked. :)
Frequently, Revenant is full of shit, as has been proven many times on this blog. But his posts have an air of authority and his posing as a libertarian lends him credibility. Mostly he is dumber than a sack of hammers and full of shit though.
Revenant,
You artificially abbreviated your legal history on abortion.
Abortion was illegal in both the US and England under common law. The concept was that once a baby had "quickened" in the womb, anyone ending that life had committed a crime:
"Life… begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter."
Blackstone, William (1979) [1765]. "Amendment IX, Document 1". Commentaries on the Laws of England 5. Chicago: University of Chicago Press. p. 388 (also referring to the practice under the law in 1765 as "a very heinous misdemeanor").
Abortion was illegal in both the US and England under common law.
No, abortion was *restricted* under common law.
The concept was that once a baby had "quickened" in the womb, anyone ending that life had committed a crime
Which translates to "first-trimester abortion was legal". Quickening typically occurs in week 13+.
The Hippocratic Oath explicitly forbade doctors from performing abortions for millennia and so DKWalser isn't a wrong as you smirked.
He is, and now you've cheerfully joined him in being hilariously wrong.
The Hippocratic Oath forbade doctors from doing a number of things that were considered beneath their station, such as performing abortions or performing surgery to remove kidney stones and gallstones.
Greek abortions, like most pregnancy-related activities, were typically performed by midwives.
Frequently, Revenant is full of shit, as has been proven many times on this blog
Having my intelligence insulted by people who think practitioners of infanticide were anti-abortion? Comedy gold. :)
And here we are with the same tired, already proven wrong arguments:
Now people will marry pets (Eric Ericsson)
Now polygamy will go thru
It is like the forget how many times Althouse demolished those arguments. Yet still we get the same tired lines.
' If it comes from the courts, we'll be arguing about SSM 50 years from now.'
No. Most everyone on this thread will be dead, and in case you haven't noticed young people do have an issue with this ... With rare exception it's only the old people who have an issue with this.
In 50 years you are your concerns here will be forgotten.
With fertility rates on the decline will there be anyone left?
It is like the forget how many times Althouse demolished those arguments.
When has Althouse ever demolished such an argument? I'd think we'd have heard about that one outside this blog.
Revenant said...He is, and now you've cheerfully joined him in being hilariously wrong.
I think the record is clear here who is comfortably smug. :)
But thanks for clarifying your earlier remark at 6:56, narrowing the historical concept of "fetus" to 1st trimester.
Wonder how many drafters of the 14th Amendment voted for the Morrill AntI-Bigamy Act.?
This simultaneously boring and exciting.
Boring, because all the gay marriage arguments have been rehashed a thousand times over and it's all become so tedious. Exciting, because soon you will have the pleasure of screaming "bigot", "racist", "hater", and "un-American" at the anti-polygamists, using exciting fresh arguments that are the same ones you used in your previous "only obfuscating bigots pretend to see a connection between gay marriage and legalizing polygamy" stage.
Good times ahead.
There's no moral or rational basis for the state to interfere in polygamous relationships.
If there ever was, the SSM activists destroyed, it. That gay marriage bathwater was so important to those turds that they strangled the baby to get it.
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