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

Dec 7, 2012 | Posted by: Rick in Kansas | Full story: www.towleroad.com

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 .

Comments
121 - 140 of 769 Comments Last updated Feb 6, 2013

“Post-religious”

Since: Apr 08

Location hidden

#138 Dec 11, 2012
Josh in New Orleans wrote:
<quoted text>
I have no interest in arguing this point because it is common knowledge that quasi-suspect classification was used in Lawrence versus Texas. You will not find the word anywhere in the opinion for that case because it's a doctrine through which the question of substantive due process is viewed. However, if you read the opinion, it is asserted many times over that justifications for Texas' sodomy laws failed the test of rational basis and neither did lawyers offer a valid compelling state interest.
You continue to make this claim in spite of the fact that the very opinion you cite doesn't use the words "rational basis" or "intermediate scrutiny" anywhere in the text. Apparently you are claiming that Kennedy writes opinions and leaves the very standard of review to some unstated "common knowledge."

Such a claim is head-shakingly amazing.
Josh in New Orleans wrote:
You will, however, find a succinct analysis (and criticism) of the court's use of substantive due process in Scalia's dissent. He correctly points out that the court claimed to use the rational basis standard, but then applied heightened scrutiny instead; hence, "intermediate scrutiny".
Scalia, J., dissenting:
Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.(notations omitted) We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection...
http://supreme.justia.com/cases/federal/us/53...
You've correctly read the DISSENT, but not the majority. The majority NEVER USED RATIONAL BASIS in its opinion. The majority used the DUE PROCESS clause, not the EQUAL PROTECTION clause. Scalia claims they incorrectly applied a heightened scrutiny standard from EQUAL PROTECTION jurisprudence in a sexual orientation case that was decided on substantive due process. That's Scalia's claim. Kennedy didn't write a rebuttal.

And it is this VERY POINT that apparently goes right over your head. It's why I argue that the advocates for same-sex couples should not emphasize discrimination based on sexual orientation, where the standard is rational basis if EQUAL PROTECTION is used. They should emphasize discrimination based on sex, where the standard is heightened scrutiny if EQUAL PROTECTION is used.

A substantive due process argument in a civil marriage case invites Roberts to rule against same-sex couples, and sexual orientation discrimination arguments invite Kennedy to rule against same-sex couples.

That's the point. Argue sex discrimination which requires intermediate scrutiny under the equal protection clause. Give Roberts the opportunity to drop-kick substantive due process, which is what he wants. Give Kennedy the heightened scrutiny standard he needs to satisfy his conservative inclinations.

“Live and let live”

Since: Apr 08

New Orleans

#139 Dec 11, 2012
Jerald wrote:
<quoted text>
You continue to make this claim in spite of the fact that the very opinion you cite doesn't use the words "rational basis" or "intermediate scrutiny" anywhere in the text. Apparently you are claiming that Kennedy writes opinions and leaves the very standard of review to some unstated "common knowledge."
Such a claim is head-shakingly amazing.
<quoted text>
You've correctly read the DISSENT, but not the majority. The majority NEVER USED RATIONAL BASIS in its opinion. The majority used the DUE PROCESS clause, not the EQUAL PROTECTION clause. Scalia claims they incorrectly applied a heightened scrutiny standard from EQUAL PROTECTION jurisprudence in a sexual orientation case that was decided on substantive due process. That's Scalia's claim. Kennedy didn't write a rebuttal.
And it is this VERY POINT that apparently goes right over your head. It's why I argue that the advocates for same-sex couples should not emphasize discrimination based on sexual orientation, where the standard is rational basis if EQUAL PROTECTION is used. They should emphasize discrimination based on sex, where the standard is heightened scrutiny if EQUAL PROTECTION is used.
A substantive due process argument in a civil marriage case invites Roberts to rule against same-sex couples, and sexual orientation discrimination arguments invite Kennedy to rule against same-sex couples.
That's the point. Argue sex discrimination which requires intermediate scrutiny under the equal protection clause. Give Roberts the opportunity to drop-kick substantive due process, which is what he wants. Give Kennedy the heightened scrutiny standard he needs to satisfy his conservative inclinations.
You have a good argument for rational basis on the matter of sexual orientation, but where does that get us? I'm a scientist, not a lawyer, but one thing I can say for sure is that for justice to be had, consideration of our rights is rightfully on equal footing with everyone else. To hell with the legal arguments! Even lawyers sometime try finding ways to say, "Equal does not (quite) mean 'equal'." I don't buy it, and I'm sorry that you do.

“Post-religious”

Since: Apr 08

Location hidden

#140 Dec 11, 2012
Josh in New Orleans wrote:
<quoted text>
You have a good argument for rational basis on the matter of sexual orientation, but where does that get us? I'm a scientist, not a lawyer, but one thing I can say for sure is that for justice to be had, consideration of our rights is rightfully on equal footing with everyone else. To hell with the legal arguments! Even lawyers sometime try finding ways to say, "Equal does not (quite) mean 'equal'." I don't buy it, and I'm sorry that you do.
You misunderstand, or I am inadequate in my communication. In either case, I apologize.

I do not buy the notion that inequality is acceptable when sexual orientation is the issue. But my argument is not mere legal jujitsu, nor is it an attempt to avoid the issue.

Where civil marriage is concerned (not military service, or ENDA, or hate crimes, or other gay rights issues), sexual orientation is not the issue. Gay people can marry in every state, and gay couples can marry in every state. The only legal requirement is based on the sex -- not the sexual orientation -- of the partners.

"Where does this get us"? This fact provides us with a very real advantage in the law (with regards to the standard of review), and a greater practical chance relative to our success with the current makeup of the Supreme Court.

I've been told that it's likely that this argument (sex discrimination) will be included in the briefs, and perhaps even the oral arguments, before the Court in the spring. It won't be the "A" argument, but it will be advanced.

I can see this argument persuading Kennedy, and perhaps even attracting Roberts, who would love nothing more than to sink substantive due process claims. Are 6-3 favorable decisions probable? Maybe not, but their possibility is enhanced when we shape the arguments to the actual legal issues and focus them on the audience that has the power to deliver the goods.

“ reality, what a concept”

Since: Nov 07

this one

#142 Dec 11, 2012
NoQ wrote:
Since you don't recognize anything else but your simple one track mind, I'll give you the best reason of all, which will stand. Marriage between two men is like trying to put oil and water together. It's not suppose to go together. It's nasty, perverted, and abnormal. Now feel free to go su:ck on another shit covered dick and think about it, you stupid shiteating Fa$$ot.
Ah, the seldom used blithering irrational basis test. I guess ravening hate and deranged ignorance is always a way they might go in their level of scrutiny here, but... Fortunately for us, most members of the Court don't share your rather obvious brain damage.

“ reality, what a concept”

Since: Nov 07

this one

#144 Dec 11, 2012
NoQ wrote:
Hey shiteater, get your nasty A$$ back underneath the shithouse before I unleash Big Boss Man on your perverted A$$.
I'd suggest Viagra sweetie, but it would only go to waste. Blither on if you want my little b*tch, but I'm done playing with you.

Uve

Since: Nov 12

Location hidden

#146 Dec 11, 2012
NoQ wrote:
<quoted text>
Since you don't recognize anything else but your simple one track mind, I'll give you the best reason of all, which will stand. Marriage between two men is like trying to put oil and water together. It's not suppose to go together. It's nasty, perverted, and abnormal. Now feel free to go su:ck on another shit covered dick and think about it, you stupid shiteating Fa$$ot.
So you were provoked into being an asstroll? Why are two men like oil? If two consenting adult men, form a supportive relationship, how does that effect you? You aren't involved, let people be people, without your moral judgement. And Why do you project your morality on anyone? Yes, you might have to be civil in a restaurant or some other public place, but wouldn't you do that for any stranger? I just don't see this justification for being so horrible, explain it to me.

“Luke laughs at hypocrites!”

Since: Sep 10

Palm Springs, California

#147 Dec 11, 2012
NoQ wrote:
<quoted text>
Do states require seatbelt use only for those under a certain age?
Yes, if you're a minor under a certain age, you have to wear a seat belt while riding in the back seat where an adult does not.
Do states requiring helmet use do so only for the elderly or infirmed?
On bicycles in some states, minors are required to wear helmets where adults are not.
Another example: traveling in an airplane, if you look to be overweight and the person next to you complains that he's too big, they may ask him to get off the plane. I've never heard of them asking a Queer to get off the plane because someone didn't want to sit beside them. it really doesn't matter what is said, you Queers never admit to anything that is fact or correct. You just manipulate and twist the facts, or right out lie to make things seem like they're in your favor. Feel free to actually admit that something is correct or even say, I don't know, instead of lying.
For once I was sort of interested in your post and read through it diligently, wondering where your seat belt and fat flier story was going. It SEEMED as if you were on the verge f some big interesting point, but, it just petered out and there was no punch line. I am not sure what someone too fat to fly has to do with gay marriage!

I DID sit next to a super fat woman from St. Louis to Los Angeles about 15 years ago on TWA, that long ago. She was in the window seat, I was in the aisle with my dad who DEMANDED the aisle all the time. The heavy lady was nice enough, but she was HUGE and the arm rest was propped up on her big fat thigh at about a 45% angle. Her thigh actually slopped over to my seat and as far left as I was able to squirm, her thigh still found me. It was hot and sweaty. I had to hold my right arm up the entire time and when the plane landed and we disembarked, I could not lower my right arm for a while. It was torture. However, her big fat leg was stealing part of my seat that I had paid for.

Now, HOW does that have anything on earth to do with gay marriage?

“Luke laughs at hypocrites!”

Since: Sep 10

Palm Springs, California

#148 Dec 11, 2012
Uve wrote:
<quoted text>
So you were provoked into being an asstroll? Why are two men like oil? If two consenting adult men, form a supportive relationship, how does that effect you? You aren't involved, let people be people, without your moral judgement. And Why do you project your morality on anyone? Yes, you might have to be civil in a restaurant or some other public place, but wouldn't you do that for any stranger? I just don't see this justification for being so horrible, explain it to me.
Who knows? I certainly would NEVER criticize someone having sex with a person they loved, or liked, what possible interest would it be to me? You won't see ME on some tight ass conservative forum, screaming insults day and night. There is no reason. Yet, those kind think it their duty or something.

“No Headline available”

Since: Jan 08

Defiance, Ohio

#151 Dec 12, 2012
NoQ wrote:
Since you don't recognize anything else but your simple one track mind, I'll give you the best reason of all, which will stand. Marriage between two men is like trying to put oil and water together. It's not suppose to go together. It's nasty, perverted, and abnormal. Now feel free to go su:ck on another shit covered dick and think about it, you stupid shiteating Fa$$ot.
"It's not suppose(d) to go together" is the best argument you have?

You are a clown, NoClue.

An intelligent person... Strike that... A person would be able to offer a rational defense of their argument. You, clearly, cannot.

Clearly, you're not terribly bright.
Strel

Tallahassee, FL

#153 Dec 12, 2012
NoQ wrote:
<quoted text>
Sorry Fa$$ot, you're delusional.
No, sorry, as I said I am straight. Are you disappointed? It has been my experience that fervent homophobes are often people struggling with their own sexual orientation, and lash out as a result. Good luck with that.

As for delusional, I've studied the legal arguments on both sides of this debate for years now.

The gays will win, sooner or later, and there's really nothing you are going to be able to do about that, except possibly continue your campaign to make a damn fool of yourself on the Internet.

DNF

“Religious Freedom to Marry”

Since: Apr 07

Newark OH / Baltimore MD

#154 Dec 12, 2012
WeTheSheeple wrote:
<quoted text>
So what is the point of your posts?
mental masturbation.

When I was a kid in High School the most homophobic guys were always the ones who'd proposition me after just a few beers.

DNF

“Religious Freedom to Marry”

Since: Apr 07

Newark OH / Baltimore MD

#155 Dec 12, 2012
lides wrote:
<quoted text>

Stateís are still beholden to the federal constitution, from which they derive their power. Read the 10th Amendment.
I believe you are confusing the Supremacy Clause in Article VI with Amendment 10.

DNF

“Religious Freedom to Marry”

Since: Apr 07

Newark OH / Baltimore MD

#156 Dec 12, 2012
lides wrote:
<quoted text>
The state may make such restrictions if doing so serves a legitimate state interest.
Feel free to indicate any such interest served by denying same sex couples equal protection of the law to marry. I doubt you can.
<quoted text>
Youíve yet to offer any valid legal basis for your inept rationalizations. It isnít my fault that you are a bigoted moron.
You keep referring to the "States Right" idea. I'd like to see if SCOTUS tires to skirt the Supremacy Clause issue in favor of States Rights.
Strel

Tallahassee, FL

#157 Dec 12, 2012
DNF wrote:
<quoted text>mental masturbation.
When I was a kid in High School the most homophobic guys were always the ones who'd proposition me after just a few beers.
I recall some of the uh..."prettier" frat boys in college that were homophobic in public, but spent WAY too much time on their hair for a straight guy...

“No Headline available”

Since: Jan 08

Defiance, Ohio

#158 Dec 12, 2012
DNF wrote:
I believe you are confusing the Supremacy Clause in Article VI with Amendment 10.
I don't believe I am. The 10th Amendment reserves all power not delegated to the federal government, or prohibited to the states, for the states and the people.

“No Headline available”

Since: Jan 08

Defiance, Ohio

#161 Dec 12, 2012
NoQ wrote:
A homophobe is like Santa Claus, there's no such thing.
So, you are just an idiot then?

“ WOOF ! ”

Since: Nov 12

Peoples Bushes, Arizona

#162 Dec 12, 2012
Strel wrote:
<quoted text>
I recall some of the uh..."prettier" frat boys in college that were homophobic in public, but spent WAY too much time on their hair for a straight guy...
I have an amusing story about this exact thing that happened to me one nite in the dorm at college (no alcohol involved either. LOL)

DNF

“Religious Freedom to Marry”

Since: Apr 07

Newark OH / Baltimore MD

#163 Dec 12, 2012
lides wrote:
<quoted text>
I don't believe I am. The 10th Amendment reserves all power not delegated to the federal government, or prohibited to the states, for the states and the people.
And the Supremacy clause requires all State officials to support and defend the Constitution and the individual rights of U.S. Citizens.
"....This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

I love that last part "but no religious test shall ever be required as a qualification to any office or public trust under the United States."

It really messes up the Religious Right's insistence we are a "christian" nation.
Strel

Tallahassee, FL

#164 Dec 12, 2012
NoQ wrote:
<quoted text>
Straight my A$$, STFU Queer. A homophobe is like Santa Claus, there's no such thing. As for you, well, go take a shot of Petercillin, it'll cure what ails you.
It's hard for you to grasp, I see, that someone could support gay rights to marriage and not be gay.

I suspect it's a symptom of low education and intellect, such nuances are just lost on you.

Thanks for inquiring about my ear infection, but I think Ciprodex is the correct antibiotic for that.

“No Headline available”

Since: Jan 08

Defiance, Ohio

#165 Dec 12, 2012
DNF wrote:
I love that last part "but no religious test shall ever be required as a qualification to any office or public trust under the United States."
It really messes up the Religious Right's insistence we are a "christian" nation.
As does the first amendment, truth be told.

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