SCOTUS to make decsion about DOMA

[Dr. Trainwreck]

Here's something that bothers me. Once you get over the visceral "Eww, gay cooties!" reaction I feel that the right should be the natural defenders of marriage equality. Regardless of whether they personally approve, aren't conservatives all about people having the right to do as they wish with a bare minimum of laws and taxes to keep a functioning society? And shouldn't the Republicans, who above all fear government overreaching be ready to spit tacks over the idea of government saying who can and cannot get married?

Even more so, conservatives quite like the rule of law, so I'd expect there is another angle to be taken: homosexuals don't need marriage per se. As long as they have a union/contract/procedure that grants them a certain legal status once performed, it can be called Royale with cheese, which pleases me.

Now, some homosexuals will want a traditional marriage, but don't you pay the church for the service? If so, an entirely new demographic is available, and I think most churches will instantly remember a verse or two about tolerance and the love of Christ. After all, you can trust a priest to screw you out of your money.

[Broomstick]

Now, some homosexuals will want a traditional marriage, but don't you pay the church for the service?

Here in the US "traditional marriage" is legal marriage, which may or may not have anything to do with a particular church. Too many different churches to declare only one religion's marriage as official, after all. Civil marriages such as before a justice of the peace have long had the exact same legal validity as church marriages. Some states even used to recognize "common law" marriage as a legally valid entity, and that was basically based on two people living together for a long enough period of time. While some conservatives might differ, for the vast majority marriage doesn't have to occur in a church to be considered either valid or traditional.

If so, an entirely new demographic is available, and I think most churches will instantly remember a verse or two about tolerance and the love of Christ. After all, you can trust a priest to screw you out of your money.

Quite a few congregations in the US already perform same-sex unions. There are both Christian and Jewish groups that will perform them (though not all Christians or Jews will do so) in addition to the minority religions like various flavors of NeoPaganism. So some are already doing this.

[Alyrium Denryle]

Quite a few congregations in the US already perform same-sex unions. There are both Christian and Jewish groups that will perform them (though not all Christians or Jews will do so) in addition to the minority religions like various flavors of NeoPaganism. So some are already doing this.

There is even a specific denomination, the "Metropolitan Community Church" that one can find in most major cities. A church run by gay people, for gay people.

Which reminds me, there is also a first amendment argument that one could make before the courts. Bans on gay marriage do not pass any prong of the Lemon Test:

The government's action must have a secular legislative purpose: There is no rational secular purpose in banning gay marriage whatsoever.

The government's action must not have the primary effect of either advancing or inhibiting religion: One particular religious agenda is advanced by laws banning gay marriage. Particularly because it is always done on the grounds of the "sacredness" of marriage and the "wrongness" of homosexuality, according to a particular conservative christian theology.


The government's action must not result in an "excessive government entanglement" with religion: See above.

Religious freedom, and the separation of church and state, requires the legal recognition of any marriage irrespective of which religion or church--if any--permits it, unless there is a rational secular reason to ban it such as avoiding consanguinity (inbreeding) or abuse and demographic problems (polygamy in general which is almost invariably abusive in one form or another, and polygyny in particular, which biases operational sex ratios and creates crime as a result of male competition for mates).

[Simon_Jester]

We already do it with regular marriage; get married anywhere in the US and your marriage is recognized everywhere in the US. I don't necessarily see a clear cut path from things like gay marriage to carry/conceal permits.

I don't know if there's a court case requiring a state to recognize other states' marriage licenses if it doesn't want to, though.

1967's Loving v. Virginia

Ah. I thought Loving v. Virginia had overturned the state statute against interracial marriages itself, not that it had overturned Virginia's refusal to acknowledge an interracial marriage from outside the state.

It did both, I see now. OK.

[Darth Wong]

Roe v. Wade was a legal decision, and I think it was the right one, but let's not kid ourselves. Crossroads is right; it had consequences. The vast majority of states still had laws on the books against abortion, a large fraction of the nation still thought it was a great evil, and another large fraction was undecided. Forcing the issue created a powerful, organized reaction against Roe v. Wade, and against abortion and women's rights in general.

Do you believe that if Roe v. Wade had never happened, the issue would not have been forced?

The fact is that people on both sides of any issue like this will always try to force it at the federal level sooner or later. If Roe v. Wade had not struck down abortion bans at the federal level, then anti-abortion activists would have fought to create an abortion ban at the federal level.

You can't base policy on the fear that reactionaries will react. It's what they do.

[Darth Wong]

Here's something that bothers me. Once you get over the visceral "Eww, gay cooties!" reaction I feel that the right should be the natural defenders of marriage equality. Regardless of whether they personally approve, aren't conservatives all about people having the right to do as they wish with a bare minimum of laws and taxes to keep a functioning society? And shouldn't the Republicans, who above all fear government overreaching be ready to spit tacks over the idea of government saying who can and cannot get married?

That depends on what you think conservatism stands for.

"Conservative" really just means "safe". In other words, conservative decision-making always tries to play it safe, take the least risks, etc. This is how we use the word "conservative" in any field other than politics: if someone says that he has a conservative investment strategy, he means that he plays it safe; he does not mean that he invests in far-right Christian bookstores.

In a socio-political context, "conservative" has traditionally meant "defense of the status quo", because the status quo generally seems safer than radical change of any kind. Change represents uncertainty, and uncertainty bothers people who are concerned about safety. So no, I would have to disagree that conservatives would promote gay marriage. Conservatives are not all "about people having the right to do as they wish"; they are all about preserving the status quo because they're afraid that the sky will fall if they change anything. In a similar vein, most of them have a rose-coloured notion of the past, and think that everything they dislike about modern society is due to the foolish changes we've made during the late 20th century.

In modern American politics, the word "conservative" has a warped meaning because the status quo in America was originally set up by a bunch of people who were very liberal for their era. So when they defend the status quo, they are defending a lot of ideas which were once liberal, against what is considered "liberal" today. In other words, what you have in America is a bunch of people who call themselves "conservatives" but who are actually defending a 1776 version of liberalism.

[Stark]

The term makes sense when you consider they apply it to themselves. They're protecting their own beliefs as they see them and not expressing beliefs considered 'conservative' by external observers. A social siege mentality.

[Simon_Jester]

Roe v. Wade was a legal decision, and I think it was the right one, but let's not kid ourselves. Crossroads is right; it had consequences. The vast majority of states still had laws on the books against abortion, a large fraction of the nation still thought it was a great evil, and another large fraction was undecided. Forcing the issue created a powerful, organized reaction against Roe v. Wade, and against abortion and women's rights in general.

Do you believe that if Roe v. Wade had never happened, the issue would not have been forced?

The fact is that people on both sides of any issue like this will always try to force it at the federal level sooner or later. If Roe v. Wade had not struck down abortion bans at the federal level, then anti-abortion activists would have fought to create an abortion ban at the federal level.

You can't base policy on the fear that reactionaries will react. It's what they do.

There are states where gay marriage has succeeded precisely because of a 'Fabian strategy' of making small, consolidated gains rather than going for broke all at once and risking a serious defeat. It weakens reactionary groups and forces them to show how stupid and spiteful they are.

It's not fear as such to me, it's a matter of tactics. Like loosening a stuck bolt- if you push too hard you risk bouncing off and stripping the threads, but if you push at a steady rate you're less likely to damage your own tools.

[Pint0 Xtreme]

If only I beleived the SCOTUS would rule impartially based on the constituion.

This. Unfortunately, SCOTUS is very much a political body regardless of how much we'd like to think they are beyond political reproach. However, I have some hope that they'll at least strike down the provision(s) that forbids the federal government to recognize same-sex marriages in states where they have legitimacy.

[Ralin]

There are states where gay marriage has succeeded precisely because of a 'Fabian strategy' of making small, consolidated gains rather than going for broke all at once and risking a serious defeat. It weakens reactionary groups and forces them to show how stupid and spiteful they are.

It's not fear as such to me, it's a matter of tactics. Like loosening a stuck bolt- if you push too hard you risk bouncing off and stripping the threads, but if you push at a steady rate you're less likely to damage your own tools.

I actually agree with a lot of your reasoning here, but you should consider that doing abortion that way would mean that something is legally considered a person in one state and not in others. Which I think would be problematic, to say the least. Who is legally a person with rights isn't something that should change when you cross state lines. So I think it had to be decided at the national level.

[Simon_Jester]

I don't think the existing anti-abortion laws before Roe v. Wade were all "fetal personhood" laws.

[does research]

...Actually, I'm probably wrong about the whole thing. If you look at the state of abortion law in more detail prior to Roe v. Wade, it's not as simple as I made it out to be. Nevermind.

[Dr. Trainwreck]

Here in the US "traditional marriage" is legal marriage, which may or may not have anything to do with a particular church. Too many different churches to declare only one religion's marriage as official, after all. Civil marriages such as before a justice of the peace have long had the exact same legal validity as church marriages. Some states even used to recognize "common law" marriage as a legally valid entity, and that was basically based on two people living together for a long enough period of time. While some conservatives might differ, for the vast majority marriage doesn't have to occur in a church to be considered either valid or traditional.

These I know. I was specifically talking about people wanting to marry in a church, and guessing that more and more churches that today disapprove of gay marriage would shift their stance if they lost this battle, both for monetary reasons and (as I now realize) to save themselves from being viewed as fossils. Beyond the churches that already accept homosexuals, of course.

But at least you Americans can be thankful that religion is still on the attempt to control the state. Here, Orthodox Christianity is defined in the very consitution as 'dominant religion'. Not even 'most' dominant, since that would acknowledge that other dogmas exist.

[Ziggy Stardust]

There are states where gay marriage has succeeded precisely because of a 'Fabian strategy' of making small, consolidated gains rather than going for broke all at once and risking a serious defeat. It weakens reactionary groups and forces them to show how stupid and spiteful they are.

These strategies, though, were less about provoking a reaction from the reactionary groups then preventing the possibility of a reaction from people in the middle. The reactionaries ALWAYS freak out about even the small gains; again, it is what they do. These are not the people gay rights activists have ever been trying to reach. In addition, historically, even liberal politicians were unwilling to openly support the issue, and it was the small gains strategies that embolded them to do so.

As was said earlier, devising policy based on theoretical reactionary ... reactions is foolish and short-sighted. They are ALWAYS going to oppose this sort of liberalism. The small gains strategies have their place, especially on a state or local level where the demographic and political paradigm may be different than on the national level. However, these strategies have historically been more about gaining support from the undecided in contrast to not provoking the opposition.

[Lord Falcon]

I personally don't think they're going to make it legal. For one thing, don't they have two conservative judges on the court?

[TimothyC]

I personally don't think they're going to make it legal. For one thing, don't they have two conservative judges on the court?

Do you have any understanding of how SCOTUS works?

It only takes a majority to make a ruling. 5 Justices out of the 9 on the court.

[Lonestar]

I personally don't think they're going to make it legal. For one thing, don't they have two conservative judges on the court?

Not always a guarentee on how they'll vote. You can be "mostly" liberal and then vote conservative, or otherwise indicate you're going to vote conservative on a specific issue(Kagan and guns, for instance). Same applies to conservative judges.

[Lord Falcon]

Yeah, and gay rights are a hot button issue right now. Scalia is an outright homophobe. And there are a lot of people like him out there right now.

[Alyrium Denryle]

I personally don't think they're going to make it legal. For one thing, don't they have two conservative judges on the court?

Rulings are by majority vote, 5/9ths. Here, let me 'splain things to you. Some of these justices are a foregone conclusion on the subject. Some are not, and these do not necessarily reflect their general voting record because sometimes liberal justices vote conservative on some issues, and vice versa.

Conservatives

Chief Justice Roberts: Roberts is the interesting one. Despite being fairly conservative and having a schizophrenic public record on abortion rights, he donated his on time to represent gay people in the Evan v Romers case in 1996, which sought to recognize sexual orientation as a constitutionally protected class. This bodes very well for him. As a general rule, he tends to very narrowly construe many aspects of the law. He takes a "conservative" view in the sense that he does not like to "rock the boat" so to speak. However, he also does not pull exceptions to this out of his ass when it pleases him like Scalia and Thomas are want to do. Given his past actions, I would call him favorably inclined, but with less certainty than Alito.

Justice Samuel Alito: Alito has a rather interesting record, both as a justice and in his prior legal career. In 1971, he headed a working group as an undergraduate that concluded that private acts between adults are protected by the right to privacy, and that discrimination based on sexual orientation should be forbidden. This puts him well to the left of Scalia and Thomas on this issue. He has also gone on record agreeing that separate but equal is never equal. So the issue of civil unions vs actual marriage might be an effective argument. On the other side, he has consistently held that freedom of speech is protection against things like anti-harassment laws.

I wont call him a slam dunk in favor of gay marriage, but he is unlikely to rule reflexively against gay marriage out of animus toward gay people like Scalia and Thomas will.

Justice Antonin Scalia: Foregone conclusion because he is an asshole who hates gay people.

Justice Clarence Thomas: Foregone conclusion because he is an asshole who hates gay people, and on most civil rights issues is Scalia's Homunculus.

Traditional Swing Vote

Justice Anthony Kennedy: Has consistently voted in favor of gay rights.

Liberals

Justice Ruth Bader Ginsberg: Foregone conclusion. Consistently votes in favor of equal rights for gay people.

Justice Stephen Breyer: Foregone conclusion. Consistently votes in favor of equal rights for gay people.

Justice Sonia Sotomayor: Her record is a bit thin on the subject, but what exists is favorable.

Justice Elena Kagan: Was solicitor general for the administration, which obligated her (professional ethics) to defend DADT and DOMA, even though she was personally opposed to them. Not a slam dunk, but it is reasonable to expect that she will vote against DOMA provisions.

[Alyrium Denryle]

Ghetto Edit

Now, on the matter of the things under consideration.

DOMA Preventing Federal Recognition of Gay Marriages
--There are only two justices on this court who think that gay people do not warrant rational basis scrutiny. This particular provision of DOMA fails rational basis scrutiny, because there is no rational basis (let alone enough to pass heightened or strict scrutiny) for the federal government to refuse recognition to gay marriages. It is circular, and thus motivated by animus. Therefore, on DOMA, I am predicting a 7-2 in favor of striking down that portion of DOMA, joined by Roberts, Alito, Sotomeyer, Ginsberg, Kennedy, Breyer, and Kagen. Scalia and Roberts dissenting.

Alito and Roberts may write a concurring opinion on different legal grounds.

Proposition 8
Proposition 8 being struck down is a bit complicated. It uses the same legal argument as the challenge against DOMA, namely that homosexuality is a protected class. In The prop 8 case, the argument was made following Loving v. Virginia that bans on gay marriage must pass Strict Scrutiny under the equal protection clause, because marriage is a Fundamental Right. However, the defense did not even pass Rational Basis scrutiny, and this record is not something that can be amended in subsequent appeals. If we were just talking about this, then we would expect the same 7-2 split.

However, this ruling would also be absolutely sweeping in its scale. It might be too big a pill for some of the more temperamentally conservative justices to swallow. In the case of Alito, the parts of his legal record that are harmful to gay rights center around free speech issues as well. In the case of Roberts, he may simply be unwilling to make such a sweeping ruling.

So here, I will be safe and predict a 5-4 split in favor of overturning proposition 8. However, there are two other possibilities. A 7-2 in favor, or a 5-2-2, in favor, with two separate dissents--one written by Roberts and Alito arguing that the ruling should be narrowly construed to include CA only, and the other being written by Scalia and Thomas, arguing that gay people are unworthy of constitutional protection because they are icky.

[Pint0 Xtreme]

One of the biggest fears of LGBT rights advocates (including myself) is that SCOTUS will uphold Prop 8 by A) overtly denying heightened scrutiny and B) claiming it passes the rational basis test. This doesn't just uphold marriage discrimination in California; it makes a broad and sweeping statement that LGBT citizens are not considered protected classes, which the courts have constantly avoided doing so in the past few major gay rights cases. I'm almost desperately hoping that the conservative justices' (Roberts, Alito and Kennedy) aversion to massive changes in the law will dissuade them from making such a ruling should they decide to uphold Prop 8.

Follow up question: Is there a way for the court to uphold Prop 8 without making such a ruling?

[Lonestar]

You know, I given the, uh, perception that some people have about Kagan's sexuality I'm less inclined to automatically dump Scalia in the "will vote negative" file. At least because she and Scalia apperently hang out off the clock quite a bit.

[Pint0 Xtreme]

You know, I given the, uh, perception that some people have about Kagan's sexuality I'm less inclined to automatically dump Scalia in the "will vote negative" file. At least because she and Scalia apperently hang out off the clock quite a bit.

His latest remarks haven't really given me a lot of optimism for that...

[Lonestar]

Fair enough. Hope springs eternal and all that though.

[Alyrium Denryle]

You know, I given the, uh, perception that some people have about Kagan's sexuality I'm less inclined to automatically dump Scalia in the "will vote negative" file. At least because she and Scalia apperently hang out off the clock quite a bit.

Scalia has made his opinion on anything involving gay people abundantly clear. He may be willing to hang out with one, and he is admittedly very personable, but we all know how he will vote.

One of the biggest fears of LGBT rights advocates (including myself) is that SCOTUS will uphold Prop 8 by A) overtly denying heightened scrutiny and B) claiming it passes the rational basis test.

That wont happen. It flies in the face of too much precedent for any but Scalia and Thomas to flagrantly rule that way.

Evans V Romer is instructive here. The decision held that a CO constitutional amendment prohibiting gay people from receiving any sort of anti-discrimination protection was invalid because it had no rational basis, and was motivated by Animus.

The legal reasoning will be exactly the same. In the case of DOMA, denial of federal recognition of marriages performed legally in the states has no rational basis but to deny recognition of marriages performed legally in the states. It is circular, and thus cannot be considered to have an independent legislative end. It is not concerned with tax revenue, public safety, nothing. It's sole purpose is to place a particular burden on a named group of people. Ginsberg, Kennedy, and Breyer already voted on this legal question. Roberts was one of the people making the argument (not in person, but he was on the legal team), and he volunteered to do so (as opposed to having a case handed to him by his firm). Alito held the same position in the 1970s, and has only voted against gay people when free-speech conflicted--but also ruled that school districts could not deny bullied gay students the right to change schools to escape. His cases on equal protection are a mixed bag, but he is also not the kind of justice who wants to be on the wrong side of history.

Follow up question: Is there a way for the court to uphold Prop 8 without making such a ruling?

No. Which is why it wont happen. Even if Roberts and Alito side with the Trogs, Kennedy will not. He might be the swing vote generally, but his gay-rights stances have been very consistent.

[The Duchess of Zeon]

One interesting alternative I've heard proposed is that Roberts will form a majority for striking down DOMA with a "grand compromise" which holds that the constitution's "full faith and credit" clause, rather than the terms Aly is citing, are why DOMA must be struck down, and that it applies broadly enough that all licensures and contracts must be recognized between states--the grand bargain being that such a ruling would force universal 50-state reciprocity of concealed carry, so that, for example, someone could get an out-of-state Florida CPL and use it to lawfully carry heat in downtown Chicago. I think Prop 8 will be struck down on narrow grounds only because that's only as far as Alito, Roberts, and Kennedy will be willing to go.