Supreme Court Will Hear DOMA and Prop...

Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis

There are 769 comments on the www.towleroad.com story from Dec 7, 2012, titled Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis. In it, www.towleroad.com reports that:

The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry , and one Defense of Marriage Act case , Windsor v. United States .

Join the discussion below, or Read more at www.towleroad.com.

“Live and let live”

Since: Apr 08

New Orleans

#85 Dec 9, 2012
DNF wrote:
<quoted text>Hold your horses cowboy.
I see nothing wrong with this marriage and it happens to be legal.
Granted it's not one I'd enter and it does strike me as really odd, but that doesn't make it "wrong" or a "fake marriage" anymore than anyone else's.
A Gay Man in a Straight Marriage: I Love My Wife
http://therickilakeshow.com/episodes-clips/20...
Just because some gay men are prone to assimilation does not mean the rest of us should accept the declaration that if we want marriage then, "marry a woman". Hold your horses. Inequality in marriage is just one way society is trying to compel people like us to either conform or stay out of the mainstream. The sex of one's parter should not play a role regarding whether government will or will not recognize a person's marriage. If a gay man reasonably wants to marry a woman, that is fine, but it does not eliminate the discrimination my husband and I face because our relationship not recognized. Therefore, it's a strawman argument to claim the discrimination does not exist merely because I have the option to marry a woman. That does nothing to help my current circumstance, and if anything comes across as an insult because utilizing such an option would require me to leave my husband, but for why?

Since: May 12

Woodland Hills, CA

#86 Dec 9, 2012
DNF wrote:
<quoted text>Hold your horses cowboy.
I see nothing wrong with this marriage and it happens to be legal.
Granted it's not one I'd enter and it does strike me as really odd, but that doesn't make it "wrong" or a "fake marriage" anymore than anyone else's.
A Gay Man in a Straight Marriage: I Love My Wife
http://therickilakeshow.com/episodes-clips/20...
People do what works for them. I don't see a problem with this example either. I don't think this story is a good excuse to not allow same sex couples to get married. For the record I'm just making a statement I'm not accusing you of claiming that it is.

“Live and let live”

Since: Apr 08

New Orleans

#87 Dec 9, 2012
Jerald wrote:
<quoted text>
My concern is that 5 justices on the Supreme Court won't find that gay and lesbians are a suspect class. Kennedy didn't in Romer or Lawerence.
So why are advocates arguing that their clients are members of a suspect class when they don't need to? Shouldn't advocates argue what is in the best interest of their clients, that which will have a greater likelihood of achieving the results that their clients seek? Sex, not sexual orientation is the sole legal basis for the discrimination in civil marriage. It is upon this ground that the arguments should be based.
I tentatively agree, but it's a catch-22. Heightened (not strict) scrutiny was applied in Lawrence versus Texas, but since then, sexual orientation has been added to to body of law as a protected class via the Matthew Shepard Act. Therefore, the standard for review at the trial court level (bc it's viewed through the body of current law) has been for strict scrutiny. SCOTUS does not have to view the scrutiny question in the same way as trial courts, so on the one hand, rational basis would seem appropriate if not for the precedent set in Lawrence versus Texas. However and oddly, that status was determined at a time when gays and lesbians were de facto considered state felons. A lot has changed in 10 years and to roll back to a standard of rational basis would effectively undermine nearly every legal challenge against such discrimination. It would be an total tragedy for the LGBT civil rights movement because for the first time the courts are putting consideration of our rights on equal footing.

“Post-religious”

Since: Apr 08

Location hidden

#88 Dec 9, 2012
Josh in New Orleans wrote:
<quoted text>
I tentatively agree, but it's a catch-22. Heightened (not strict) scrutiny was applied in Lawrence versus Texas,


You are mistaken. No higher level was scrutiny was used in Lawrence, and heightened scrutiny has never been applied to gays and lesbians by the Supreme Court. The Supreme Court used substantive due process implied by the 14th Amendment to arrive at the notion of a right to intimate conduct in a relationship. Feel free to quote from the Lawrence decision if you believe I am in error.
Josh in New Orleans wrote:
but since then, sexual orientation has been added to to body of law as a protected class via the Matthew Shepard Act.


No, sexual orientation is not a "protected class" via the Matthew Shepard Act. The act expands the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. That is not the same as classifying gays and lesbians as a "protected class". All people have a sexual orientation or gender, and are therefore protected by the Matthew Shepard and James Byrd Hate Crimes Act. Not all people are gay or lesbian. You are conflating two different concepts.
Josh in New Orleans wrote:
Therefore, the standard for review at the trial court level (bc it's viewed through the body of current law) has been for strict scrutiny.


Says who? On what authority and in what case do you rely for this statement. It really doesn't make any sense.
Josh in New Orleans wrote:
SCOTUS does not have to view the scrutiny question in the same way as trial courts, so on the one hand, rational basis would seem appropriate if not for the precedent set in Lawrence versus Texas.
Again, you make little sense. Ultimately, SCOTUS decides the standard of review, not trial courts, and it did not rely on any heightened standard in Lawrence.
Josh in New Orleans wrote:
However and oddly, that status was determined at a time when gays and lesbians were de facto considered state felons. A lot has changed in 10 years and to roll back to a standard of rational basis would effectively undermine nearly every legal challenge against such discrimination. It would be an total tragedy for the LGBT civil rights movement because for the first time the courts are putting consideration of our rights on equal footing.
There are easily three justices who would use rational basis for deciding either Windsor or Perry. Roberts could opt for a heightened standard as a way to dispatch with "substantive due process" claims, or he could strike both arguments down and vote with his conservative colleagues against same-sex couples using rational basis.

That leaves Kennedy. Kennedy did not use heightened scrutiny in Romer or Lawrence, and there is no evidence or indication that he would apply it in Windsor or Perry. The argument that would more likely sway him would be one that doesn't require the creation of a new standard or the application of a standard to a new group. Arguing the cases as sex discrimination would give him that opportunity, and make it easier to use existing heightened scrutiny based on sex to obtain his vote.
hi hi

Philadelphia, PA

#89 Dec 10, 2012
Jerald wrote:
I'm still at a loss as to why marriage equality isn't being argued as sex discrimination, where a legal standard for review already exists. While the practical discrimination may be based on sexual orientation, the LEGAL discrimination in these cases is SOLELY based on sex. After all, no state denies the right to obtain a civil marriage based on sexual orientation, gay people can marry everywhere, even gay couples can marry in every state. The limitation would require that one partner be a gay male and the other a gay female. Sex -- not sexual orientation.
Cases like Romer and Lawrence dealt with sexual orientation discrimination. Windsor and Perry do not. The legal discrimination is based on sex, and the standard of review for sex discrimination is higher than rational basis. Government needs a legitimate reason to deny a fundamental right based on sex.
The Supreme Court has held on over a dozen occasions that the right to marry is a fundamental right. Civil marriage is the only form of marriage at issue here, and the only form of marriage over which the court has jurisdiction. There is no such legal construct as "gay marriage" or "same-sex marriage", only civil marriage, so no new "right to same-sex marriage" is created.
The legal question is whether the state can deny a fundamental right based solely on the sex of a citizen. Sexual orientation is legally irrelevant, since no state denies the right on that basis.
(said in a positive/nice way) I love when I see someone flummoxed over a fundamental question such as this, because I have been floored by things the pro-gay movement is *not* doing, and sometimes I feel like I'm the only one. Literally, it's nice to see someone else appearing to find a major way of tackling all of this strange.

Since: Jan 12

Port Richey, FL

#90 Dec 10, 2012
WeTheSheeple wrote:
<quoted text>
There have been cases in Kentucky where they refused to recognize the marriage of 1st cousins who had married out of state. There have been other cases as well, some of which went to court and the state won.
I'm quite sure that couples moving from another state Kentucky is going to assume there not and as long as the said couple does not disclose that they are in fact first cousins there they will get every rites afforded by Kentucky to them I hate to coin the old saying if it looks like a duck quacks like a duck it must be a duck!

Since: Dec 08

El Paso, TX

#91 Dec 10, 2012
Just consider the source. His record stands on it's own.
Josh in New Orleans wrote:
<quoted text>
WTF? In the context of my previous comment, your response makes no sense. I am unnerved at the possibility SCOTUS will issue a ruling that is detrimental to gay LGBT equality. So exactly why if that is the case should my capitalist ass move to Cuba?

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#92 Dec 10, 2012
For the record:

I have a very dry sense of humor. Why do so many people here take EVERYTHING I say seriously ???

:)

ROFL !

Since: Dec 08

El Paso, TX

#93 Dec 10, 2012
Because you lie so much.
Fa-Foxy wrote:
For the record:
I have a very dry sense of humor. Why do so many people here take EVERYTHING I say seriously ???
:)
ROFL !

Since: Jan 12

Port Richey, FL

#94 Dec 10, 2012
Fa-Foxy wrote:
For the record:
I have a very dry sense of humor. Why do so many people here take EVERYTHING I say seriously ???
:)
ROFL !
Foxy, Honey, first you need to have a sense of humor, and all you have, my dear is that lame old jewel of europe crap at best. But sweetie, you do make us all laugh even though it at you not with you

“Live and let live”

Since: Apr 08

New Orleans

#95 Dec 10, 2012
Jerald wrote:
You are mistaken. No higher level was scrutiny was used in Lawrence
Excuse me, because I misspoke. Quasi-suspect classification was used, which means the level of scrutiny was intermediate, not heightened.
Jerald wrote:
No, sexual orientation is not a "protected class" via the Matthew Shepard Act.
Hmm… now that is just mincing words. The law protects individuals from being attacked because of their sexual orientation and other criteria. Before then, nothing in the body of law even mentioned sexual orientation. That has changed.
Jerald wrote:
All people have a sexual orientation or gender, and are therefore protected by the Matthew Shepard and James Byrd Hate Crimes Act. Not all people are gay or lesbian. You are conflating two different concepts.
All people have race. That does not mean people of different races lack status as a protected class. An example of a class that is not protected is “red heads”.
Jerald wrote:
Says who? On what authority and in what case do you rely for this statement. It really doesn't make any sense.
I almost cannot tell you anymore. I have been following these cases and the legal analysis for way too long at this point.
Jerald wrote:
Again, you make little sense. Ultimately, SCOTUS decides the standard of review, not trial courts, and it did not rely on any heightened standard in Lawrence.
If you read Scalia’s dissent in Lawrence versus Texas, even he recognized the court eviscerated its precedent for rational basis review in issuing that decision. As I mentioned, I misspoke. The level of scrutiny applied in that case was intermediate. Trial courts, unlike SCOTUS, must look at the question of scrutiny differently, so you’re actually agreeing with me on this.
Jerald wrote:
There are easily three justices who would use rational basis for deciding either Windsor or Perry. Roberts could opt for a heightened standard as a way to dispatch with "substantive due process" claims, or he could strike both arguments down and vote with his conservative colleagues against same-sex couples using rational basis.
I agree, that is what worries me.
Jerald wrote:
That leaves Kennedy. Kennedy did not use heightened scrutiny in Romer or Lawrence
Intermediate scrutiny…
Jerald wrote:
, and there is no evidence or indication that he would apply it in Windsor or Perry. The argument that would more likely sway him would be one that doesn't require the creation of a new standard or the application of a standard to a new group. Arguing the cases as sex discrimination would give him that opportunity, and make it easier to use existing heightened scrutiny based on sex to obtain his vote.
I will leave the decision to the lawyers. If anything, if SCOTUS sticks with precedent, then intermediate scrutiny might apply, but it would be terrible if they reverted to using rational basis.

Since: Dec 08

El Paso, TX

#98 Dec 10, 2012
Your posts are being removed almost as fast as you and type them dude. LOL
NoQ wrote:
You nasty Fa$$ots have no sense of humor. No wonder people think your freaks.
NoQ

Springfield, NJ

#100 Dec 10, 2012
TomInElPaso wrote:
<quoted text>Your posts are being removed almost as fast as you and type them dude. LOL
Doesn't matter whether they remove my post once it's posted anyway. Already had my say. You Perverts can't stand it cause they haven't found a way to ban me. Only thing they can do is remove my post periodically. That's no big deal. So su:ck it up Fa$$ot, cause you can't get rid of me. LMFAO

Since: Dec 08

El Paso, TX

#101 Dec 10, 2012
Like they cant find out your ISP. You've dropped the really foul stuff for a reason, and we both know why.
NoQ wrote:
<quoted text>
Doesn't matter whether they remove my post once it's posted anyway. Already had my say. You Perverts can't stand it cause they haven't found a way to ban me. Only thing they can do is remove my post periodically. That's no big deal. So su:ck it up Fa$$ot, cause you can't get rid of me. LMFAO
NoQ

Springfield, NJ

#102 Dec 10, 2012
TomInElPaso wrote:
<quoted text>Like they cant find out your ISP. You've dropped the really foul stuff for a reason, and we both know why.
Believe me Fa$$ot, if they could ban me, they would. They've tried over and over. Every time it happens, 2 clicks and I'm back on. They can't keep me from posting. As for dropping the foul stuff, that all depends on how others are treating me, has nothing to do with worrying about getting banned.

Since: Dec 08

El Paso, TX

#103 Dec 10, 2012
Not only are you an admitted troll but you're also a liar. No one has shown the disrespect here more than you.

If you think that if you go far enough they won't go to your internet provider and get your access closed down you'd be wrong.

Seriously, do you have some sort of mental illness or psychological problem that causes you to conduct yourself in such a sick manner? It certainly appears so.
NoQ wrote:
<quoted text>
Believe me Fa$$ot, if they could ban me, they would. They've tried over and over. Every time it happens, 2 clicks and I'm back on. They can't keep me from posting. As for dropping the foul stuff, that all depends on how others are treating me, has nothing to do with worrying about getting banned.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#104 Dec 10, 2012
NoQ wrote:
<quoted text>
Believe me Fa$$ot, if they could ban me, they would. They've tried over and over. Every time it happens, 2 clicks and I'm back on. They can't keep me from posting. As for dropping the foul stuff, that all depends on how others are treating me, has nothing to do with worrying about getting banned.
So what is the point of your posts?

“What Goes Around, Comes Around”

Since: Mar 07

Kansas City, MO.

#107 Dec 10, 2012
NoQ wrote:
<quoted text>
They can't. I piggy back off numerous different...... Well you get the idea fa$$ot. LMFAO actually you perverted CSers has the mental illness and in need of psychological help. Wish you fking freaks would ge thet help you need, but you and I know it's a lost cause.
Yes, we know you're a lost cause, thanks for admitting it.

Since: Dec 08

El Paso, TX

#108 Dec 10, 2012
Sure they can, they'll block them one at a time till they are all gone.

You aren't terribly bright are you?

We're not the ones with mental illness but someone in your condition wouldn't have any understanding of thst.
NoQ wrote:
<quoted text>
They can't. I piggy back off numerous different...... Well you get the idea fa$$ot. LMFAO actually you perverted CSers has the mental illness and in need of psychological help. Wish you fking freaks would ge thet help you need, but you and I know it's a lost cause.

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#109 Dec 10, 2012
Something just occurred tomme about these 2 cases.

I think we have all known for awhile that the petitioners in the Prop 8 case may not have standing, and that the SCOTUS justices will consider that issue first and may decide that they do not have standing, thus dismissing the case without a decision on Prop 8.

But the SAME ISSUE may exist with the DOMA case as well, because the Solicitor General is not defending the law. Rather, Congress is defending the law. But DOES congress have standing ? The answer that they do have standing may seem obvious on it's face, yet it is possible that the justices may rule that ONLY the executive branch has standing to defend a federal law. I don't think that issue has ever been addressed before by SCOTUS, because I cannot think of a case where congress has defended a law before SCOTUS, when the executive branch has refused to do so.

Also, IF SCOTUS upholds DOMA (I think DOMA is obviously unconstitutional)(I also think Obamacare is clearly unconstitutional but that hasn't stopped SCOTUS from saying that it is), hasn't then The Obamaniac refused to uphold federal law, and isn't that obvious grounds for impeahcment ?(I think we should not waste and time and we should impeach him rite now !:))

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