Proposition 8: What I heard today and what I expect from it in a nutshell.

[David Zephyr]

Unless some germ grows before the official ruling is given, I think we can pretty much surmise what will come out of the case argued today before the Supreme Court with regards to the California's extremely offensive Proposition 8.

The outcome, which can happen in more ways than one, will be that Proposition 8 will be overturned in the State of California with zero application to the rest of the nation.

Justice Kennedy will join with Justices Breyer, Ginsburg, Breyer, Sotomayor and Kagan in making it thus. Justice Kennedy is on the threshold of history and I believe he is a fair man. I heard it in his voice. It's not an easy call for him, but he is a decent man and he obviously has a heart.

Sadly, I must tell you that listening to the Justices, not just reading their words, was far more revealing than I'd imagined it would be. Their tones really told me the whole story which is Justice John Roberts is really uncomfortable, not just with homosexuality, but to homosexual Americans. Yes, yes, I know he has a gay cousin, but those of us who have been oppressed by our country's straight white patriarchy our entire lives have trained ears. I know what I heard in his voice. He's no friend of mine or my families. And the fact that he has two adopted children in his "marriage" yielded no empathy today from him whatsoever for LGBT American families with adopted kids of their own...no more than Justice Thomas' bi-racial marriage will yield no empathy either. Zip. None. Those who are hoping need to swallow that hope. This guy is happy with keeping LGBT Americans as second class citizens.

Today I learned that Justice Roberts apparently actually believes or chooses to believe that LGBT Americans in civil unions already have all the same rights as heterosexual married couples. If only that were so, then the issue before the Supreme Court tomorrow (DOMA) would not be there. I had held out a wee bit of hope for John Roberts, but then I heard him in his own voice today. So I only will await how he spends the rest of his life explaining and apologizing for the discrimitory vote he is going to cast.

Justice Alito's words and tone only confirmed the level of ignorance many of us have come to expect from him. He truly deserves the nickname Scalito. Never could a name fit an individual better.

Finally, Justice Scalia's gave the public a much closer glimpse of his own very peculiar form of sick homophobia. For those who do not know, Justice Scalia's son is a priest who has dabbled in the odd and imaginary trade of "repairing" homosexuals. One cannot help but really wonder what pathology is underneath Scalia's raging fear and bigotry against homosexuals. I wonder if his own son perhaps grew up all of his life hearing that same mean-spirited, belittling sarcasm and hostile tone that Mr. Scalia demonstrated today. Who knows? I don't know, but that possibility certainly struck me. A sort of twisted, reverse Oedipus Rex Complex meeting Opus Dei all in one?

I will be long dead and gone before my LGBT sisters and brothers have their full human rights on this planet. To those in the heterosexual world who have big hearts and big minds and who have helped, if even a bit, toward that end, I thank you from the bottom of my heart.

History will be the Supreme Judge of these supreme court justices regardless how they rule.

[The Velveteen Ocelot]

1. You could be right - your prediction is not unreasonable -

but I learned years ago, working as an appellate court clerk, that it's very, very difficult to predict the outcome of a case on the basis of the justices' questions and comments, even when you're on the inside. Sometimes a question does not reflect that judge's actual opinion at all; instead, he or she might be trying to get a more specific answer from one or both of the lawyers (Scalia is the exception; he's a bomb thrower who seems to try to be offensive. We all know where he's coming from anyhow, and his Mini-Me, Clarence Thomas, will probably just say "me, too," to whatever he decides). So, while I would not be at all surprised if they overturned Prop 8 on the narrowest possible grounds (which appellate courts often do, if they can), they might do something else altogether. We have to wait and see. I hope for the best.

[Ms. Toad]

4. I made a similar comment in another thread -

I didn't articulate why, but for very similar reasons. My (appellate) judge often went into arguments with an opinion as to which way the case should be decided. Often that was how he came out. But, on the occasions I came back to him after research and said, "Judge, the law just doesn't support that," he authored opinions that contradicted what those listening to oral arguments (or his fellow Republicans) would have predicted.

[David Zephyr]

5. Wise words.

[OffWithTheirHeads]

2. My take as a straight white male is that the supremes will do as little as possible.

They will rule that the prop 8 proponents have no standing, letting California do what they want but offering no solution on a national level because they have no guts to actually resolve the issue.

[elleng]

3. Because the rule is DON'T decide matters and cases which do not HAVE to be decided,

has NOTHING to do with guts to decide the issue.

[RudynJack]

8. Yes, this.

I know people want a sweeping decision, but they're not likely to get one.

What I wonder though, is what happens if DOMA is overturned (as I expect it will be). Is it just setting up another case to get to the court requiring states to recognize same-sex marriages performed elsewhere?

[elleng]

9. Could be;

ask me tomorrow, after argument in DOMA case. Really haven't thought about/studied it.

Could be the 'federalism' issue to which you allude is the next big one, on this issue. And with 50 states, and considering where many of them have been going recently, I'm not optimistic. Makes Gov. Dean's new venture more important. http://www.democraticunderground.com/1014435536

[David Zephyr]

13. "Makes Gov. Dean's new venture more important."

So well said. So very, very true.

[Richardo]

47. elleng, you're a treasure to this board

I always look for the angels avatar knowing I'm going to read something reality-based and intelligent. /fanboy

[elleng]

48. Oh dear Richardo, thank you.

Perfect timing!

[Benton D Struckcheon]

6. At least 6 to 3 to rule gay marriage flat out Constitutional

Seriously. There's even an outside chance it'll be unanimous. The arguments against are all papier-mâché. I think you guys are making way too much of the necessary process of questioning the lawyers for and against so that they are forced to make their cases.

There's nothing in the Constitution that says gays can't marry, anymore than there was 40 years ago saying a white and a black person couldn't marry. So the SC can't really say it's not Constitutional, since the document doesn't address it at all. It does say "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." which sweeps away DOMA and any attempt by any state to say that a marriage in another state isn't valid. So that one should be easy. Then the fact it doesn't address marriage but does say "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.", which can easily be interpreted to mean that if you can get married in NH you can get married in NC, and vice versa, which kills Prop 8 or any other state law like it.
In other words, both from what's not in it and what is in it you very easily arrive at a point where you say, not that gays can marry, but where did it ever say they couldn't? And if it doesn't that means they can, and if they can that means they can in every state. And that's that.

[Ms. Toad]

10. Unfortunately, that isn't how constitutional law works.

States have always been the arbiter of what constituted marriage within their boundaries. It took decades of decisions to develop the reciprocity we have now - and what it means is not that if you can get married in one state you can automatically get married in another, but that if you can get married in one state every other state has to recognize it.

As to heterosexuals, there are lots of differences between the marriage laws from state to state. Just a few examples of the differences: First cousins are permitted to marry each other in some states, and not in others; the age of marriage differs from state to state, as does whether there are exceptions to age restrictions with parental permission; and common law marriages are recognized in some states, and not others.

So a heterosexual couple who can marry in NH cannot necessarily marry in NC.

I believe that Loving v. Virginia, which forced recognition of the Loving's interracial marriage across state boundaries, is just as applicable to same gender marriage. So if a gay couple goes to a place where marriages can be created, when they come home their marriage should be recognized. That has not been tested, and DOMA (a portion of which says that states can't be forced to recognize same gender marriages) makes the question more complicated.

I like your optimism, but it just isn't that simple from a legal perspective. If it was, my (legally valid) marriage would have been recognized by Ohio nearly a decade ago.

[Benton D Struckcheon]

12. Hmm. Question:

Is it possible today for a state to legislate against interracial marriage? Your post seems to say only that an interracial marriage performed in one state has to be recognized by another state, even if that state prohibits it within their boundaries.

[elleng]

14. No, not after Loving v. Virginia.

The U.S. Supreme Court overturned the convictions in a unanimous decision (dated June 12, 1967), dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Chief Justice Earl Warren's opinion for the unanimous court held that:

“ Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. ”

The court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

“ There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. ”

Associate Justice Potter Stewart filed a brief concurring opinion. He reiterated his opinion from McLaughlin v. Florida that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."

http://en.wikipedia.org/wiki/Loving_v._Virginia

[DevonRex]

27. I have always loved that quote by Justice Stewart.

To me, that has always been the crux of Loving and will be the crux of gay marriage with a slight change.

[Ms. Toad]

16. That is how it started out (it was a recognition across state boundaries issue)

Last edited Wed Mar 27, 2013, 01:01 AM - Edit history (1)

and there were laws on the books until 2000 (Alabama was the last law to remove its ban).

ETA: I'm going to look at this summary later - it has been a few years since I read Loving v. Virginia - and I suspect elleng's summary above is more accurate than mine.

The question came up in the context of a marriage outside of the state (the Lovings had gone out of state to marry since Virginia prohibited interracial marriages - or, more specifically, prohibited a white person to marry outside of his or her race), and was actually a criminal case.

In 1967, the majority of the justices could not get enough justices to agree with the concurring opinion, which said, "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

But - as a practical matter - if recognition of out of state marriages was required, there was no reason for any state to prohibit marriages since couples could always go to another state to marry. I don't recall whether there was a later case formally adopting the concurring opinion; I know that what happened as a practical matter was that laws that were on the books prohibiting marriage stopped being enforced.

Today, a state would not be able to constitutionality enforce a prohibition on marriage based on race (lots of case law since then about how racial classifications are viewed). That same case law doesn't apply to sexual orientation (states can get away with a lot more discrimination - there just has to be some rational basis (and it doesn't have to be much) to treat LGBT people differently).

[Benton D Struckcheon]

18. OK, between you and elleng I am thoroughly confused

I read the first clause of the Fourteenth over and over, compared that to Article 4, sections 1 and 2, and can't wrap my head around how you could deny a class of people the right to marry without abridging their liberty. It's one thing to not allow first cousins to marry, set a minimum age for marriage, stuff like that, and quite another to say that some person just by reason of who he is can't get married. I can't figure a way you can say that and at the same time hold that doesn't abridge that person's liberty. Something here doesn't compute.

[Ms. Toad]

25. elleng likely has a better summary of Loving

I'll reread and edit mine in a bit so as not to confuse people - it has been a long time since I read it in detail, but on a second quick look, there is a lot more fundamental right language in there than I recalled.

But as to the current question, in legal analysis classifications which are based on race are treated differently than virtually all other classifications. A law which treats people differently based on race must pass a review known as strict scrutiny. There must be a compelling governmental interest in using race, the law must be narrowly tailored, and must be the least restrictive means for achieving the governmental interest. So laws which prohibit marriage based on race would be struck down because they could not meet these three tests. Virtually all laws reviewed under this test are overturned.

Classification based on sexual orientation, on the other hand, has nearly always been reviewed under the rational basis test. The question in that test is whether the law is a reasonable means to pursue a legitimate government interest. There can be lots of other ways to achieve the same goal, the interest just has to be something that is legitimate. Much easier test to pass, and virtually all laws reviewed under this test are upheld.

Understanding the constitution isn't something which you can really do just by reading it in isolation - you have to look at the case law and see how the courts have interpreted each clause. But even looking at the summary of where you are hung up - the laws which prohibit same gender marriage don't prohibit a person from marrying based on who they are - the laws restrict the potential marriage partners (you can marry - just not someone who is the same gender). That is very similar to a law which prohibits someone from marrying a first cousin - it isn't prohibiting a person from marrying based on who they are - the laws restrict the potential marriage partners (you can marry - must not someone who is your first cousin). The same with racial restrictions. The laws which prohibit same interracial marriage don't prohibit a person from marrying based on who they are - the laws restrict the potential marriage partners (you can marry - just not someone who is of a different race (the Virginia laws also only applied to whites - so there was another wrinkle which is why I need to reread them).

I've probably strewn enough confusion about for today...

[JDPriestly]

30. Cases based on sexual orientation are decided by applying the rational

basis test. But I see the issue as one of gender discrimination, not sexual orientation discrimination.

How can you consider the gender of a person in determining whether the person can exercise a fundamental right like marriage? You aren't supposed to discriminate based on gender in hiring policemen (or women) or firemen (or women). So why should marriage be a gender issue. Why should marriage be restricted to people of different genders if being a nurse or a police officer cannot be restricted to people of different genders or of one gender?

Why does the gender of a person determine whether they can publicly and legally commit to a life partner?

I don't think it should be approached from the point of view of discrimination against homosexuals but rather discrimination based on gender.

And looking at it that way, Prop. 8 cannot stand because you have to use intermediate review, and there is no significant basis for discriminating based on gender in California with regard to marriage.

That's how I have always seen this issue. I think that people get stuck with the idea of gay marriage and don't see the broader issue that when you limit the right to marry to couples in which one is a man and one is a woman, inevitably you discriminate against one gender or the other or maybe both.

[Ms. Toad]

38. It is an interesting question

The case tomorrow was decided at the appellate level based on its assessment that historical discrimination made homosexuals a quasi-suspect class, requiring a higher standard of review than rational basis. It was the first federal appeals court to do so - but the elevation wasn't based on gender.

Logically, your argument makes sense - but I don't think the Supreme Court will go there.

[David Zephyr]

19. Right to the point.

DOMA will be the acid test. Tomorrow's arguments and comments by the Justices will take this to another level.

Like you, I do not have the optimism of our fellow DU'er, but then I've lived a very long time and seen how some very bad laws survive when they should not have and how they succeed in their design which is to oppress.

Thank you for your informative comments.

[David Zephyr]

20. Oh, but that it was so easy...and fair...and just.

You are right and yes, their arguments are papier-mâché, but those arguments became statutes and laws to oppress, constitutional or not...and they succeeded.

I hope your optimism is rewarded, Benton. I really do. I don't share it. Not with this Court.

Tomorrow is the acid test. DOMA. If I can't believe, then I'll let you believe for me.

[Ms. Toad]

7. Scalia, from a legal perspective,

is an interesting case study.

I never agree with his opinions, from a "what should the outcome be" perspective. But I remember being absolutely shocked in law school at the number of times I could find absolutely no flaw in his legal reasoning. I would find myself agreeing with, and really appreciating the well reasoned opinion which came out the way I wanted it to - and with some horror - finding myself agreeing with the legal reasoning in a Scalia opinion. Often his opinions are quite eloquent (from a legal perspective).

And then there are his opinions on anything gay - the man is a raving lunatic. I find it hard to believe that the same man who could write with enough legally sound reasoning that it has often won my grudging respect is the same person who can barely put two coherent sentences together about gay rights, of any sort, without the spittle practically leaping from the page.

[Hekate]

17. Fascinating. Thanks for the insight, Ms. Toad

[Moostache]

23. From a human perspective, the view is a lot different.

Thanks for sharing that with us, its certainly not always an easy thing to find any redeeming qualities in some people and Antonin Scalia is at the very top of my list in that regard.

I am not a lawyer, I'm a biochemist at heart, so I do not share the nuanced view of legal reasoning, logic or precedent setting decisions to make him anything more than the world's most anticipated heart attack victim to me.

[DevonRex]

28. Scalia. Whenever he talks or writes at great length it is always bullshit.

Much like every Shakespeare character who goes on and on. Look beneath what he's saying for what he's (or shes ) covering up.

And with Scalia, if he goes back thousands of years to the original meanings of words ( or even just hundreds) he's desperate and has simply made something up out of whole cloth.

[JDPriestly]

31. True. I remember one opinion he wrote in which he avoided

quoting from the legislative history by citing to case law of decisions based on that history.

I have heard him speak. I think he is just shallow. Likes controversy and attention. He makes a mockery of logic but then we all make mistakes and think more highly of ourselves than we deserve to. And I am no exception, so maybe I should cut him some slack.

Scalia has done so much damage to Americans in some of his Supreme Court decisions. Just horrible damage.

[Ms. Toad]

39. Have you spent much time reading his criminal law opinions?

In that area of law, in particular, his legal reasoning is usually impeccable. That doesn't mean I like the outcome - I virtually always prefer the other side of the decision. But I can rarely find fault (from a legal perspective) in how he got there. That truly shocked me when I started reading his opinions.

But on homosexuality - everything he writes is pure rant.

[davidpdx]

40. From a biological stand point

he'll be a good case study for an autopsy when he dies. It will prove he doesn't have a heart.

[Ms. Toad]

41. You may be right about that one! n/t

[MuseRider]

11. Hi David!

I am not sure how to read these judges. I just don't know. What I think I do know is that you and I will actually live to see equality. Think how fast this has all changed. We have worked so hard and not let up and even in places like Kansas we are at least not going backwards but holding fast. I also think that once it changes over it will change all at once. I do not think the LGBT citizens of this country or those of us who have worked with them will let it be anything less. We all know far too well how easy it is for everyone else to scream about the little bit you got and expect you to be happy. Nope. It must be all, full equality.

Just my opinion, not based on anything but what I think is how this will go down. It may not be now, I sure hope it is, but if not it will come soon. The people I know working on these issues are not going to be content to go home and just lick their wounds. I do think you will be around to celebrate with us

[David Zephyr]

21. Hearty hello and hug to you, MuseRider.

You will have to carry me over the finish line with your optimism. I thank you for it. Don't become jaded like me. I've been at this for over 40 years. Almost half of a century.

[MuseRider]

42. Oh gosh David me too

I have been so down as to quit doing the work and then come back and then.....you know how it is but since our lobbyist lives with us during session I always get that boost and inside info on how the legislature is thinking and then have tons of opportunity to do things so that does keep me up during those times.

I will be 60 at the end of this year. I know what you mean about doing this work. I have not been actively working for anywhere near as long as you have but have always been supportive. I still think an inadequate response from the SCOTUS will bring about the changes needed. It will take longer than a broad based good outcome from SCOTUS will but to get this close, have the majority of the people behind you with memories still of the civil rights movement, women's rights movement should fire this up to end it.

OK, pollyanna here. I just see so much support that we have needed for so long and can't imagine it could go otherwise.

For you many I have missed seeing you here. It is so good to see you again.

[Hekate]

15. Thank you for lending us your trained ear

Your observations are very important.

With Roberts, I had hoped that the specious argument about marriages supposedly having to be fertile would have some impact, but apparently not.

Scalia -- well, nothing can be expected of him. I did not know about his son, however. A touch of the Fred Phelps family there?

Even if the 5 Justices come down with a narrow ruling affecting only California, it will be a precedent-setting move forward. Not a defeat, by any means.

In solidarity,

Hekate

[JDPriestly]

32. Remember. Roberts adopted his two children because he and his

wife were over 40 when they married -- and perhaps not fertile.

This may be a sensitive issue for him.

I would not want to guess where Roberts will come down on this issue. It is a tough one for him because he and his wife are Catholics, but he may have difficulty thinking of a reason to decide in favor of Prop. 8. So, I have my fingers crossed.

Discrimination in marriage is just horrible.

Been married 50 years. Neighbors for many years are gay. They are a support for our marriage as we are for theirs. It's just ridiculous to say that gay marriage is any different from our heterosexual marriage. I wish I could invite the Court to my neighborhood to see how we who have lived as neighbors for many years are such good friends -- a straight couple and a gay couple.

Breaks my heart that people are so foolishly intolerant of the lifestyles of others. Our neighbors are the kindest, parenting the children and the strays in the neighborhood. They were good to our kids and to all the children in the neighborhood and in an honest, healthy way.

As I said, the intolerance makes me feel sick to my stomach. How can people be so cruel?

[David Zephyr]

49. Thank you.

My companion and I have been together for over 35 years, but two drunk heterosexuals married by an Elvis impersonator in Las Vegas have more rights than we do. That's "moral" to all but 9 states in the U.S.

Without progressive heterosexuals like you, our little homosexual minority in the U.S would still be outlaws. Governor Jerry Brown was the first in America to "decriminalize" us in the 1970's. Imagine that.

I hold no hope for Justice Roberts. Today's DOMA arguments confirmed what I heard yesterday. He wants to desperately find a legal way to punish what he thinks is behavior rather than status. His repeated comments about how "successful" the "lobby" of LGBT Americans on American opinion were simply bizarre, gratuitous. I suggests that compassionate heterosexuals were hoodwinked and discredits their big understanding of the United States.

[JDPriestly]

50. As I think back, I believe that my first violin teacher was probably a

lesbian. Obviously, I was a nerdy kid and oblivious except that I noticed that she wore extremely plain clothes and didn't seem to care.

She was kind and patient, and that was all that mattered to me.

And then in music school at the university, there were lots of homosexuals. I never could understand why anyone would object -- except that one of the homosexuals, an outstanding violinist, a really great musician, whose name I cannot remember, was really attractive. That was annoying because, of course, he would never give me the time of day. I used to sit behind him and was in his theory classes. . . . Oh, well. He probably thought I was a pest. I think I was 17 or 18. That was too long ago.

To cut a very long story short, I had very good personal experiences with homosexuals throughout my life. I never really cared who was what once I was happily married. I just hoped others could have the opportunity to grow psychologically and spiritually that marriage, truly caring for and about another person and sharing your life can provide.

And my very elderly mother, a staunch Christian agrees. She thinks nobody should "live in sin" and that is her reason for supporting same-sex marriage. I agree with her.

[David Zephyr]

34. Guess what? I agree with you. "Not a defeat, by any means."

Hekate, I will take a narrow ruling as a victory and as you said a "move forward". Others may disagree, but I will take it.

[rhett o rick]

22. I am hoping for the best but, like you, I think they will not go all the way. nm

[David Zephyr]

37. I'll take the narrow ruling on this one. Let's hope for a better day tomorrow with DOMA.

[colsohlibgal]

24. Maybe Why This Is So Hard Here

Dan Savage, on with Chris Hayes this weekend, explained that Canada got the French, Australia the prisoners, while the US got the Puritans. Sounds about right.

The hold of the "Puritan" types seems to be on the way out of you look at polling from the under 30s. We can only hope.

[JDPriestly]

33. Actually, the problem here is not with the Puritans who settled in New

England primarily. It is with the Baptists and fundamentalists, Catholics and Mormons. The mainstream Protestant Churches are fairly reasonable on the issue of gay marriage. Depends on the person, but overall that's not the problem.

[David Zephyr]

35. "the U.S. got the Puritans". It's so funny and painfully true at the same time.

[RandySF]

26. The Prop 8 case gives the court an easy out.

But tomorrow's DOMA case takes it head on.

[moondust]

29. Wouldn't that invite more cases from more states? n/t

[ArcticFox]

36. They will refuse to decide

With half the argument centered around the issue of standing and the providence of making a ruling, my prediction is they let the lower court ruling stand. There will be same sex marriage in California.

But the movement will spread.

[WinstonSmith4740]

43. They just keep fighting to keep those blinders on!

"...Justice John Roberts is really uncomfortable, not just with homosexuality, but to homosexual Americans." "...So I only will await how he spends the rest of his life explaining and apologizing for the discrimitory vote he is going to cast."

I think Roberts is looking to "make up" to the RW for his vote on Obamacare.

[rusty fender]

45. That's what I was thinking!

But even Ginsburg's tone was to go slow, implying that we should take the next 50 years and allow marriage equality to "evolve."

[Demeter]

44. That would be an Insane Ruling

and in line with what this court has done for quite some time now.

[displacedtexan]

46. Is it dusty in here or what?

How many tears does it take to get through to these bigots? Life is too damned short to put up with any more legislated inequality!