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US Supreme Court to weigh Prop 8 Against 14th Amendment

#1

strawman

strawman

12-144 Hollingsworth v. Perry

Question presented:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

In addition to the questions presented by the petition, the parties are directed to brief and argue the following question:

Whether petitioners have standing under Article III, Section 2 of the Constitution in this case.
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There are two pretty big questions the supreme court is entertaining today (and we are ignoring for the moment the DOMA question to be argued tomorrow).

First, does the fourteenth amendment to the US constitution, which reads in part, "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." Note that this amendment discusses "life, liberty, and property" but the petition being discussed today only talks about the equal protection under the law.

Second, does the United States Constitution trump California's constitution in this case. The judicial power of the United States Government, as outlined in the US constitution, is limited, and most issues between states and their citizens are not governed by the federal government. Marriage is one issue which the federal government has typically ruled is governed by the states.

The Supreme Court now has the opportunity to open a whole can of worms. Putting aside, for the moment, the question of gay marriage, the Supreme court could rule on whether states are allowed to govern marriages within their own borders, or if the federal government is going to take that right and responsibility away from them and transfer that authority to the US government and congress.

Further, they have the opportunity to declare that LGBT citizens are a group to be protected from discrimination of any form, and put sexual orientation on the same footing as sex and race.

While the primary question, "Is defining marriage as between man and woman" is the trigger, there is going to be a chunk of argument devoted to state's rights, and the division between the US constitution and state autonomy. A number of states are going to argue against LGBT rights in defense of their overall state rights. It would be quite possible to see a gay marriage supporting state argue against gay marriage in this case simply to avoid having the right to define marriage taken away from them.

Further, if the federal government accepts the responsibility to define marriage for the entire US, many, many issues would suddenly move to the federal government that are currently dealt with by the states.

The Supreme Court, of late, has tended to issue very narrow rulings, and I expect this to be the case here.

I doubt that this ruling will affect many other states, and we will have to see several of these lawsuits decided at this level before a more general ruling is made.

Oral arguments are today (march 26th) and the ruling is expected in June. Expect much discussion and dissection of arguments over the next week. Most political folk right now are focused on the one "swing vote" in the Court, expecting that the other 8 justices will rule as they have in past similar cases. Thus the questions posed by Justice Anthony Kennedy are probably going to receive the most scrutiny as people attempt to understand how he might vote based on what questions he asks.


#2

Espy

Espy

Interesting. I'll be following this.


#3

Dave

Dave

Arguments are over. Now we wait for the ruling. Which will happen about June, the court says.


#4

Frank

Frank

That was fast.


#5

Dave

Dave

They only heard arguments for about an hour twenty minutes.


#6

strawman

strawman

It was only scheduled for an hour, and is the time when the parties make a brief statement, and the justices ask questions, which takes up the majority of the time. The vast majority of the arguments and legal reasoning are contained in briefs and filings already and to be made. The oral arguments are really just a tiny part of the whole process.


#7

Gilgamesh

Gilgamesh

To the death of bigotry and hatred. I look forward to hearing this outcome.


#8

Tress

Tress

My main gripe about Prop. 8 is that it a simple majority was allowed to amend the state constitution, which normally requires a 2/3 majority in the state legislature. That should not be. Oh, and the fact that lobbying groups based outside of the state spent a ridiculous amount of money to affect the outcome.

You know, aside from that whole pesky discrimination thing.


#9

Bowielee

Bowielee

Just a little personal anecdote. I was home visiting my mom over Christmas and we were watching my Big Bat Gypsy Wedding. Watching that show, it just occurred to me how ridiculous it is that THAT specticle is supposed to be sacred, whereas a loving couple who don't start fistfights with the priest are abhorant just because they both happen to have a dick or vagina.


#10

Gilgamesh

Gilgamesh

Or worse:

(Granted that second couple wouldn't get an adoption granted either if someone were to actually visit their home, unless all they did was look at the family on paper. Still doesn't undermine the fact that the above part of the picture rings true).


#11

Terrik

Terrik

Gilgamesh said:
Or worse:

(Granted that second couple wouldn't get an adoption granted either if someone were to actually visit their home, unless all they did was look at the family on paper. Still doesn't undermine the fact that the above part of the picture rings true).
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Which is why the picture would be so much more effective with the top portion alone. Hyperbole doesn't help anyone's case.


#12

Gilgamesh

Gilgamesh

Terrik said:
Which is why the picture would be so much more effective with the top portion alone. Hyperbole doesn't help anyone's case.
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That's just it though, the couple below still has a better chance at an approved adoption. All it would take is one person who just looks at the family income/home ownership/other kids in school paperwork and boom, Accepted.


#13

strawman

strawman

Gilgamesh said:
All it would take is one person who just looks at the family income/home ownership/other kids in school paperwork and boom, Accepted.
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Seems pretty obvious that you've never been through the adoption process, so why are you arguing about it? You could have left it at the first statement.


#14

Terrik

Terrik

Gilgamesh said:
That's just it though, the couple below still has a better chance at an approved adoption. All it would take is one person who just looks at the family income/home ownership/other kids in school paperwork and boom, Accepted.
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Is that how it works? As far as I know, adoption procedures are fairly intensive, including home study and a court hearing with recommendation for or against based upon the home study findings.

That being said, I get the point, however the image above relies on exaggerated imagery and reinforcement of negative stereotypes that one has to wonder if the image has any use except to be shown to "the choir". It has little value in actually convincing or influencing others that didn't already fully support this position. The top portion alone is effective as it attacks no one and enforces positive values.


#15

strawman

strawman

CORRECTION:

The second question addressed concerning article 3 does not refer to the state's rights vs federal rights, rather it refers to the fact that California has declined to defend proposition 8, but has permitted a special group of proponents to defend it where California chose not to.

The question, then, is that even though California's courts ruled that this group could present and defend prop 8 within the California judicial system, do they have any standing in the federal judicial system?

Article 3 is pretty clear about who can take a case to the supreme court, and who the court will hear. So the first part of the oral arguments was spent discussing whether this group had any right to defend prop 8 at all in the Supreme Court.

However, the case still may affect state's rights if the ruling chooses to certify gay marriage bans as discriminatory according to the fourteenth amendment, just not as directly as I had understood and explained it in my first post.


#16

Dave

Dave

My brother: Married 3 times. 5 kids for whom he moved states and jobs to get out of paying child support. Fired from jobs because of drugs.

My friend "Tom": Been with the same man for about 30 years.

Guess which one can adopt? Guess which one is discriminated against? guess which one is "ruining the sanctity of marriage"?

If you don't want gays to marry and you are not gay, you are [redacted].

edit: Broke the rules. I apologize to stienman and gave myself a point.


#17

Gilgamesh

Gilgamesh

stienman said:
Seems pretty obvious that you've never been through the adoption process, so why are you arguing about it? You could have left it at the first statement.
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You're right, I'm exagerating a bit over a subject that I'm emotionally charged over. I retract that statement.

Yes it has value Terrik . Sometimes it takes shock images (even slightly tame ones) to get some people, who are not necessarily bad, but simply do not know really what the situation is, to understand better.


#18

strawman

strawman

Gilgamesh said:
Yes it has value Terrik . Sometimes it takes shock images (even slightly tame ones) to get some people, who are not necessarily bad, but simply do not know really what the situation is, to understand better.
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So you support the ban advocates use of disturbing anti-homosexual images in order to help these same people "understand" the situation better?

Hyperbole and showing one bad example on one side and one good example on the other side do nothing but widen the chasm between the two sides. It shouldn't be done by either side.


#19

Charlie Don't Surf

Charlie Don't Surf

I love when Steinman posts 7,000 words about how he thinks different people don't deserve the same happinesses he enjoys


#20

Dave

Dave

stienman said:
Love you too, Dave.[DOUBLEPOST=1364322160][/DOUBLEPOST]

So you support the ban advocates use of disturbing anti-homosexual images in order to help these same people "understand" the situation better?

Hyperbole and showing one bad example on one side and one good example on the other side do nothing but widen the chasm between the two sides. It shouldn't be done by either side.
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I'm interested on your arguments against same sex marriage. Other than blatant discrimination, I can think of none. Marriage is NOT a religious institution, but one of equality. If your religion is against it, then that's perfectly fine - your church doesn't have to perform them.


#21

Ravenpoe

Ravenpoe

As a single, straight man, I personally would like to see a ban on heterosexual marriage.

Where's the lobby for that?


#22

Dave

Dave

Charlie Don't Surf said:
I love when Steinman posts 7,000 words about how he thinks different people don't deserve the same happinesses he enjoys
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Other than his taking offense to my statement, he's only been talking about the federal vs. state's rights, not same-sex marriage.


#23

Gilgamesh

Gilgamesh

Dave said:
If your religion is against it, then that's perfectly fine - your church doesn't have to perform them.
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I still find it amusing that anyone would even use the religion defense considering that less than a few decades ago, religion was still cool with slavery, and only changed it when the general public's view of that was negative. This is going to go the same route. Hell most religions still haven't accepted women as equal rights holders and still reprint their manuscript/books with passages condemning women to be little more than slaves themselves.

Oh and I'll happily call anyone who identifies as part of a group trying to -Defend Traditional Marriage- a bigot. Allowing gay couples to have the same rights as heterosexual couples does absolutely nothing at all in any way to the hetero couple's marriage. It's still as -sacred- as it ever was.


#24

strawman

strawman

Dave said:
I'm interested on your arguments against same sex marriage.
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The last few times I've done this dance on the forum I've discovered that no one here is really interested in understanding this position, so much as they are interested in defending their own position and framing those that believe otherwise as bigots and homophobes.

I've long since given up participating in those arguments, which is why I'm so far just sticking to reporting on the supreme court events, as this may well be our generation's Roe v. Wade. I see this as a possible watershed event depending on just how far the Supreme Court is willing to go in its ruling, regardless of my personal feelings on the matter.

If you want to learn reasons why one might choose to ask that society define marriage as between a man and a woman, there are countless web resources for you to research and learn.


#25

Tress

Tress

... because you spend so much time trying to understand why almost everyone else here supports same-sex marriage? Right.


#26

Gilgamesh

Gilgamesh

stienman said:
If you want to learn reasons why one might choose to ask that society define marriage as between a man and a woman, there are countless web resources for you to research and learn.
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Personally? I've tried to do this. There is no reason, scientific or religious that holds any water on the subject. I've tried to find any hope of there being a reason where I go -Hmm, I didn't consider that, maybe it's not so cut and dry-, honestly there wasn't a single one.
Tress said:
... because you spend so much time trying to understand why almost everyone else here supports same-sex marriage? Right.
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Those who use religion as their reason don't have to try, the book they cherry pick their beliefs out of gives them that barrier (I'm not talking about @Steinman here, just religious people who use that defense in general)

Personally I really like having @Steinman around. He gives views on subjects such as Politics and Gay Marriage that I'm on the complete opposite side of the board on. However he never does it in a disrespectful or rude way, I learn alot reading his views, especially back during the election.


#27

Charlie Don't Surf

Charlie Don't Surf

I don't see how these people don't realize they're on the wrong side of history. Their grandkids are going to be ashamed of them.


#28

AshburnerX

AshburnerX

I'd like to see a poster that says "Defend Traditional Marriage" and then has an old gay couple insulting each other from across the room, as they both mostly ignore each other.


#29

Tress

Tress

Gilgamesh said:
Those who use religion as their reason don't have to try, the book they cherry pick their beliefs out of gives them that barrier (I'm not talking about @Steinman here, just religious people who use that defense in general)

Personally I really like having @Steinman around. He gives views on subjects such as Politics and Gay Marriage that I'm on the complete opposite side of the board on. However he never does it in a disrespectful or rude way, I learn alot reading his views, especially back during the election.
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I like Steinman, and I really think he adds a lot to our discussions around here too. But I don't agree with the implication that he keeps an open mind and looks at every issue from every angle, while the rest of us troglodytes grunt and fling poo at anything different from our own thoughts.


#30

Dave

Dave

I flung poo.


#31

Charlie Don't Surf

Charlie Don't Surf

Tress said:
But I don't agree with the implication that he keeps an open mind and looks at every issue from every angle, while the rest of us troglodytes grunt and fling poo at anything different from our own thoughts.
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quality over quantity


#32

strawman

strawman

Tress said:
I like Steinman, and I really think he adds a lot to our discussions around here too. But I don't agree with the implication that he keeps an open mind and looks at every issue from every angle, while the rest of us troglodytes grunt and fling poo at anything different from our own thoughts.
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It is not my intention to imply anything of the sort, and I'm sorry for giving that impression. One of the reasons I hang around here is the level of understanding, intelligence, and mutual respect in the face of disagreement. I will try to do better at phrasing my posts so they don't leave such implications, but I'm honestly only recently becoming aware of the degree of my conceit, so it will take some time for me to understand it, nevermind alter my perspective so it isn't such an issue in the future.

Also, please don't stop flinging poo. The odd combination of weirdness and intelligence is what attracts me. Not a big fan of all-poo-all-the-time forums, nor uber-intelectual forums.


#33

Chad Sexington

Chad Sexington

Dave said:
I flung poo.
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We've been burned by your projectile excrement stories before, Dave. No one's buying it now.


#34

Cheesy1

Cheesy1

Chad Sexington said:
We've been burned by your projectile excrement stories before, Dave. No one's buying it now.
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Cat Forgiving Dave.png


#35

blotsfan

blotsfan

I think States rights are overrated. If the States are enforcing a law that is blatantly wrong, they lose their right to decide on that matter. And I don't think that means the federal government has to take on responsibilities. They can still have the States be in charge of the marriage bureaucracy, but they all have to do it for gay couples. now


#36

Charlie Don't Surf

Charlie Don't Surf

I only support states rights when it comes to legalizing it


#37

strawman

strawman

The oral arguments are available for listening and reading:

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144

Very interesting. The first issue is actually, "Do the petitioners have the right to represent the state of California, where the governor has instructed the state's attorney general to not defend the case?"

Then they discuss the actual issues - is denying marriage a form of discrimination prohibited under the equal protection clause.

The respondents (ie, people supporting gay marriage) are joined by the US attorney general, and the discussion between the justices and the US counsel brought up an interesting point I hadn't realized:

States that deny all partnership/union rights to gay citizens are safe from a certain set of rulings the Justices could make. In effect, by providing some of these rights, but not all, to LGBT citizens, states are demonstrating clear-cut discrimination. They already admit that they are a protected class, and thus should be afforded rights, but once they provide some rights they essentially have to provide them all. It's all or nothing, and it's quite possible that the justices will rule in a way that would force those states recognizing any form of same sex union to fully provide marriage benefits to them without restriction, while at the same time telling states that provide no rights that they are permitted to continue to discriminate in this manner.

It was something I didn't expect.

Most of the arguments are waffling on whether the ruling should be broad or narrow. No one is suggesting to the justices that they should rule in a way that affects anyone other than California. California is in a peculiar enough position that they could easily rule in a way that wouldn't affect any other state, and they could rule in either direction and still keep it narrow.

It's very interesting to read the back and forth about whether the petitioners have a right to bring the case to court. At one point a justice suggested to the respondents, "Well, if the people enact the amendment, and the state chooses not to enforce or defend it, then shouldn't the people be allowed to defend it?" Suggesting to me that California is treading on thin ice in regards to being considered a democracy if the leadership can pick and choose which parts of the state constitution apply at any given time.

Note that the oral arguments only present a very narrow view into the whole case. The briefs need to be read to understand everything that's being said on all sides, the oral arguments are a few pages compared to the hundreds of pages of other case documentation.


#38

GasBandit

GasBandit

I was left with the impression that the supreme court will kick it back, leaving the overturning of prop 8 in place but thus not overturning any other of the 49 applecarts (well, 40 or so, I guess).


#39

AshburnerX

AshburnerX

I really don't see how they can't overturn all the apple carts at this point.


#40

GasBandit

GasBandit

AshburnerX said:
I really don't see how they can't overturn all the apple carts at this point.
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Quite easily. By saying that the case has been brought before them improperly (the "standing" bit) and refusing to rule at all, thus leaving the 9th circuit's decision in place, thus keeping gay marriage legal in California while having no bearing on the situation in any other state.


#41

Cheesy1

Cheesy1

And thus passing the buck off as long as possible and not infuriating the anti-gay establishments in other states.


#42

strawman

strawman

AshburnerX said:
I really don't see how they can't overturn all the apple carts at this point.
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If they decided they didn't have jurisdiction, or the plaintiffs can't represent California, then the ninth court ruling stands, and nothing else changes nationally. This would result in the fewest tipped carts, IMO.

However, there's another option which results in few tipped carts, but not as many as specifically ruling for or against either party:

The US Solicitor General put forth the following Federal government position in the matter, completely paraphrased (read the last few pages of the oral arguments to get the exact arguments used):

It is the position of the US federal government that states which allow same sex couples to have or adopt children and provide some of the rights of parenthood to those couples must, in the interest of their children, provide all the rights associated with marriage and the family unit to those couples.

States which do not allow adoption into same sex couples and which do not provide parenting rights to same sex couples should be permitted to deny marital rights to same sex couples.

Further, we do not have a position on whether states should allow same sex marriage generally. This is a social experiment that is younger than cell phones and the internet, and we should adopt a wait and see attitude before making any broad rulings. The first country to allow same sex marriage was Norway in 2000, less than 14 years ago. It may harm children. It may not. It's not clear, and since it's a highly politicized issue we should let the people self-determine through legislation, referendums, and amendments until such a time as it becomes clear whether children are harmed or not.

We do not have an official opinion on whether the plaintiffs have standing in this court.
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So yes, they can very selectively rule in a way that helps and hurts both sides: they can continue to associate marriage with childrearing and family, and force states to allow marriage wherever childrearing is present, without taking the rights away from states to determine whether they will recognize same sex marriage or not.

That would turn over the fewest apple carts, but it's still a lot of carts. At that point once states have to start using the word "marriage" then other states and the federal government have to recognize those marriages as valid, and the problems cascade. Problems the states were desperately trying to avoid by using "union" and "partnership" so the M word, which is contained in very specific interstate and federal treaty language, wouldn't necessarily apply.

In essence, once that word applied, every state would have to recognize same sex marriage, because anyone could get married out of state, then move back in and force the state to recognize the marriage due to the various interstate treaties. The states would be taking a serious look at treaty modifications.


#43

GasBandit

GasBandit

"Various interstate treaties" nothing, it's the full faith and credit clause of the constitution.


#44

strawman

strawman

Hey now, don't muddle my hand waving with mere facts.


#45

Gilgamesh

Gilgamesh

stienman said:
Hey now, don't muddle my hand waving with mere facts.
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Hey now that's my line that's not right!


#46

strawman

strawman

They are very likely to release the ruling on this tomorrow morning.


#47

Charlie Don't Surf

Charlie Don't Surf

Good.


#48

Dave

Dave

They are going to rule that same sex marriages are people.


#49

strawman

strawman

Therefore corporations are actually same sex marriages, and anyone opposing them must now also oppose corporations.

Also those that oppose corporations must therefore oppose same sex marriage.


#50

Dave

Dave

ow! ow! ow!

:aaah:


#51

bhamv3

bhamv3

stienman said:
Therefore corporations are actually same sex marriages, and anyone opposing them must now also oppose corporations.

Also those that oppose corporations must therefore oppose same sex marriage.
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And a corporation buying out and owning another corporation is technically in violation of the thirteenth amendment.


#52

strawman

strawman

The Supreme Court has added a non-argument session for the announcement of opinions on Wednesday, June 26, 2013, at 10 a.m.
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Well then. So much for finding out today, I think they're giving all the other opinions they plan on releasing today out of the way, and letting the few "big" opinions have their own spotlight tomorrow.


#53

AshburnerX

AshburnerX

stienman said:
Well then. So much for finding out today, I think they're giving all the other opinions they plan on releasing today out of the way, and letting the few "big" opinions have their own spotlight tomorrow.
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They just announced that part of the Voting Rights thing was unconstitutional. Looks like Jim Crow is back in the house!


#54

strawman

strawman

AshburnerX said:
They just announced that part of the Voting Rights thing was unconstitutional. Looks like Jim Crow is back in the house!
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Well, at some point those states will have to live by the same voting rules as all the other states in the union.


#55

AshburnerX

AshburnerX

stienman said:
Well, at some point those states will have to live by the same voting rules as all the other states in the union.
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I think it's far more likely we're going to get national standards sooner rather than later than the minority community is going to take this sitting down.


#56

strawman

strawman

bhamv3 said:
And a corporation buying out and owning another corporation is technically in violation of the thirteenth amendment.
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No, it's just considered polyamory.



#57

bhamv3

bhamv3

Polyphilia makes it sound like you have multiple fetishes.


#58

Ravenpoe

Ravenpoe

bhamv3 said:
Polyphilia makes it sound like you have multiple fetishes.
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Doesn't everyone? :ninja:


#59

strawman

strawman

Now they're just teasing us. They released an opinion on something else after the DOMA opinion.

Those sneaky justices!


#60

Covar

Covar

To the Supreme Court:


#61

strawman

strawman

http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf[DOUBLEPOST=1372257120][/DOUBLEPOST]
Petitioners did not have standing to appeal the District Court’s order.
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[DOUBLEPOST=1372257289][/DOUBLEPOST]So they basically said, "The California Supreme Court's order that Proposition 8 is unconstitutional remains in effect."


#62

Covar

Covar

Interesting.[DOUBLEPOST=1372257637][/DOUBLEPOST]How about that, states rights (or in this case states judicial rights). If I'm reading this correctly SCOTUS is stating that the situation was handled correctly at the state level and by the state judicial system and that there was no convincing reason ("case or controversy") for the Federal Supreme Court to get involved and make a ruling?


#63

strawman

strawman

It's not the slam dunk that gay marriage advocates wanted - they were hoping for a ruling that would pave the way for all states to accept it.

However, it does keep marriage as a state right, and also shows people that if the state itself is unwilling to defend a constitutional amendment, the federal government isn't going to step in.

The federal government, therefore, does not interpret state constitutions, nor police state enforcement of them. This is clearly a state matter.[DOUBLEPOST=1372257870][/DOUBLEPOST]
Covar said:
Interesting.[DOUBLEPOST=1372257637][/DOUBLEPOST]How about that, states rights (or in this case states judicial rights). If I'm reading this correctly SCOTUS is stating that the situation was handled correctly at the state level and by the state judicial system and that there was no convincing reason ("case or controversy") for the Federal Supreme Court to get involved and make a ruling?
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I think that it's possible that they would intervene if a valid petitioner - that of the state itself - came forth to appeal the ruling.


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