SCOTUS to make decsion about DOMA

[Alyrium Denryle]

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.

Alito maybe, Roberts... possibly. But Kennedy?

He is called a swing vote only because he can go one way or the other, but that is definitely issue-dependent. His rulings on things like equal protection are... interesting. First of all, he wrote both Lawrence V Texas and Romer V Evans. Secondly, his opinions, and those he joined, display a deep a version to government action motivated by Animus toward a given group. Even in Establishment Clause cases, he tends to side with laws of general applicability (such as voting to uphold a prohibition on the use of peyote, even if it interferes with native americans, while at the same time voting to permit animal sacrifice by Santeria adherents, because the law specifically targets them and indicates a pattern of Animus toward their specific practices while not also prohibiting other forms of animal slaughter like hunting or for food).

Over and over again, he makes the case--even when he writes in concurrence with the court, but not accepting its reasoning--that he will not tolerate legislative in either the civil law or criminal law, or for that matter public displays, that are predicated on Animus toward fellow citizens.

This in many cases leads to him being a moderate on the court, because he does not display partisan purity in the same sense the others do. However, at least where social issues are concerned he does have a unifying principle. Animosity toward a group is bad, and as we saw in Lawrence V Texas, he is not afraid of making sweeping decisions when that is involved. There is a reason the trial judge in the Prop 8 case cited Kennedy's decisions many many many times. They are cut from the same jurisprudential cloth.

[The Duchess of Zeon]

Well, I agree that will lead him to strike down Prop 8, but the narrow grounds in the 9th Circuit decision operate on the same basis, yet come to a much less sweeping decision than you are suggesting. I therefore think cautiously, that the results of the court case will be to strike down Prop 8 in California and likewise ban the revocation of gay marriage elsewhere (i.e., Iowa, the only state where it is still a danger), but won't necessarily go further. On the other hand with DOMA almost certain to go because of how blatantly it tramples on full faith and credit, states can ban gay marriages from taking place in their territory, but will not be able to avoid recognizing gay couples married elsewhere.

[Lord Falcon]

Alyrium: That sounds reassuring. What I believe will happen now is they allow civil unions all across the US, but will deny same-sex marriage except in the states where it already is law. To me, all this legobabble (the opposite of technobabble) is meaningless since deep down in my heart I think gay people should be married and that's the end of it. Even if we hate it, and it's mostly the religious idiots who do, then they should let GOD handle that.

[Alyrium Denryle]

Alyrium: That sounds reassuring. What I believe will happen now is they allow civil unions all across the US, but will deny same-sex marriage except in the states where it already is law. To me, all this legobabble (the opposite of technobabble) is meaningless since deep down in my heart I think gay people should be married and that's the end of it. Even if we hate it, and it's mostly the religious idiots who do, then they should let GOD handle that.

No. That is not what will happen, because they cant. Not unless they want to overturn Brown V Board of Education.

[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.

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.

That seems a bit presumptive that Kennedy will see it exactly that way. The Ninth Circuit certainly used Evans v Romer within that context but majority opinion for that case specified that the breadth of the CO amendment 2 made it quite clear that it was pure animus that was the motivation behind the law. Now I know the Ninth Circuit addressed this by making it clear that a law borne of animus that takes away only one right is not any less problematic than another law borne of animus that takes away a whole slew of rights. But the distinction here is that the Ninth had to actively discount all of the Prop 8 defendants' arguments for lacking any legitimate purposes as the basis for their conclusion that Prop 8 was motivated by animus, which was a bit different from Kennedy's conclusion regarding CO amendment 2.

I know I probably sound like I'm splitting hairs here but I still feel that the plaintiffs' lawyers will have to really try hard to convince Kennedy that Prop 8 was sole designed to single out a single group for discrimination. And that is much more difficult with Prop 8 since the discrimination of the law was done with a much, MUCH more narrow scope and precision. To me anyways, it appears to leave a lot more room for interpretation (or excuses for that matter) of the purpose behind the law.

[Alyrium Denryle]

But the distinction here is that the Ninth had to actively discount all of the Prop 8 defendants' arguments for lacking any legitimate purposes as the basis for their conclusion that Prop 8 was motivated by animus, which was a bit different from Kennedy's conclusion regarding CO amendment 2.

I mentioned this in another post, but Justice Kennedy is VERY averse to animus, and in CO, the defendants DID argue that Amendment 2 had a rational basis. In Romer, the ruling was that it had to pass heightened or strict scrutiny (dont remember which), but did not EVEN pass rational basis scrutiny.

The arguments used by the proponents of Prop 8 are either circular, or have no basis in reality. They went on record saying they did not NEED to provide evidence of their factual claims. That record is not something they can amend on appeal. You are not even splitting hairs, you are engaging in... the act of being a worry-wort. I dont know if there is a verb for that.

[Raw Shark]

You are not even splitting hairs, you are engaging in... the act of being a worry-wort. I dont know if there is a verb for that.

The Fraggles call it, "Wembling."