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Thread: Supreme Court takes on Gay Marriage

  1. -1
    Spesh's Avatar
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    Supreme Court takes on Gay Marriage

    That fact is worrisome to those who firmly believe there is a constitutional right to marry, regardless of sexual orientation, but who also know that the Supreme Court does not often get too far ahead of the country on hot-button social issues.

    "Mindful of history, I can't help but be concerned," said Mary Bonauto, director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders and a leader in the state-by-state push for marriage equality.

    Bonauto was speaking before the court decided on Friday to take up cases on California's constitutional ban on gay marriage and a federal law that denies to gay Americans who are legally married the favorable tax treatment and a range of health and pension benefits otherwise available to married couples...

    Bonauto identified three earlier seminal rulings that once and for all outlawed state-backed discrimination, and observed that in each case the number of states that still had the discrimination on the books was far smaller.

    Thirteen states still had laws against sodomy when the court said in 2003 that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation.
    Interracial marriage still was illegal in 16 states in 1967 before the high court outlawed race-based state marriage bans.

    In 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.

    Cornell University law professor Michael Dorf said those cases illustrate a widespread misperception about the justices.

    "There is a commonly held but inaccurate view that what the Supreme Court does is to impose its views on the country. It very rarely does that. Much more frequently, it will take a view that is either a majority in some place or a majority of elite opinion and speed up acceptance," said Dorf, who was a Supreme Court law clerk to Justice Anthony Kennedy.

    The forces that mounted the legal challenge to Proposition 8 have said all along that the right to marry is so fundamental that it should not depend on success at the ballot box or the votes of state legislatures. Washington lawyer Theodore Olson, representing gay Californians who wish to marry, said he will argue that there is a "fundamental constitutional right to marry for all citizens."

    But are there five justices, a majority of the court, willing to endorse that argument?...

    In February, Ginsburg questioned the timing of the abortion decision and suggested it may have contributed to the ongoing bitter debate about abortion.

    "It's not that the judgment was wrong, but it moved too far too fast," Ginsburg said at Columbia University.

    At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas, where the Roe case originated.

    The court could have put off dealing with abortion while the state-by-state process evolved, she said. Or her predecessors could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide, Ginsburg said.

    "The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."
    http://news.yahoo.com/hope-fear-gay-...-politics.html

    Link has the warnings from both sides of the debate.

    Regardless of peoples position on this, i have questions over how this will be argued. Being unmarried myself, perhaps others can answer this question better than i: does marriage officially fall under the right to privacy?
    "I'm not here to be a distraction," Pouncey said.
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    MoFinz's Avatar
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    Theres constitutional arguments to be made for gay marriage, they can throw a dart and pick one...

    First Amendment- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech

    Ninth Amendment-The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

    I hope the Court gets this one right


    Fat, drunk and stupid is no way to go through life
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    TheWalrus's Avatar
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    Marriage is considered an "essential" right and is therefore normally subject to strict scrutiny (which I've talked about before and bearings reading about if you haven't). But homosexuals are not yet considered a "suspect" (ie protected) class. Wikipedia does a decent job explaining suspect classification so here's the link:

    http://en.wikipedia.org/wiki/Suspect_classification

    Does anybody know exactly which gay marriage case is being heard before the Supreme Court? Some are challenging DOMA and at least one Prop 8 but I haven't seen a definitive answer to which exact case is being heard.
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    Spesh's Avatar
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    Quote Originally Posted by TheWalrus View Post
    Marriage is considered an "essential" right and is therefore normally subject to strict scrutiny (which I've talked about before and bearings reading about if you haven't). But homosexuals are not yet considered a "suspect" (ie protected) class. Wikipedia does a decent job explaining suspect classification so here's the link:

    http://en.wikipedia.org/wiki/Suspect_classification

    Does anybody know exactly which gay marriage case is being heard before the Supreme Court? Some are challenging DOMA and at least one Prop 8 but I haven't seen a definitive answer to which exact case is being heard.
    The United States Supreme Court will review the decision by the 9th U.S. Circuit Court of Appeals that struck down Proposition 8, a 2008 law which banned gay marriage in California.
    The appeals court's ruling was issued in February and found the law unconstitutional.

    The court will also hear a challenge to the Defense of Marriage Act.
    http://www.huffingtonpost.com/2012/1...n_2218441.html

    Havent heard an announcement on which DOMA case they picked. Also:

    The Supreme Court on Tuesday invited a Massachusetts lawyer to come argue that the justices cannot rule on one of the gay marriage questions it had planned to decide next year.

    The court asked lawyer Vicki C. Jackson of Cambridge to join the gay marriage arguments this spring, but she won’t be arguing whether it’s legal for governments to treat gay Americans differently in issues of marriage. Instead, at the court’s invitation, Jackson would be arguing that it’s improper for the Supreme Court to even consider making a ruling on a federal law that treats gay married couples differently from heterosexual married couples.

    The high court will be hearing two gay marriage arguments: first, whether California’s constitutional amendment that forbids same-sex is constitutional. The second question is the one Jackson will argue that justices should stay out of: the constitutionality of a federal law that denies to gay couple who can marry legally the right to obtain federal benefits that are available to heterosexual married couples.....

    Jackson was asked by the court to argue “that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case.” She will also argue that House Republicans cannot substitute themselves for the Justice Department and therefore they lack “standing in this case.”
    http://www.oregonlive.com/today/inde...wyer_to_a.html
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    I was going to post this in it's own thread, but the story is so goddamn long I don't think too many people are going to end up reading it.

    Anyway, here is what I think is an excellent story from The Atlantic on the gay marriage ballot initiatives that won in November. It covers historical aspects (especially Prop 8's shocking win in 2008), as well as how "same sex marriage" became "marriage equality" and the evolution in messaging and campaign tactics that led to the four state sweep this year.

    An excerpt:

    On May 9, President Obama sat for an interview in the White House with the ABC News anchor Robin Roberts. Both of them knew what she'd been summoned there to discuss, and Roberts didn't waste any time. "So, Mr. President," she said, "are you still opposed to same-sex marriage?"

    Obama was ready for the question. A few days before, Vice President Biden had said on Meet the Press that he was "comfortable" with men marrying men and women marrying women. The surprise statement went against the president's own ambiguous stance, which was that he was against gay marriage but in the process of "evolving." At the same time, evidence of the political risk inherent in the issue was abundant. The day before, May 8, voters in North Carolina -- a key swing state Obama narrowly won in 2008 -- had overwhelmingly voted to ban gay unions, making it the 31st state to take such a step.

    Obama sat back in his leather chair, his legs crossed, his hands in his lap, composed and a bit detached. "Well, you know, I have to tell you, as I've said, I've been going through an evolution on this issue," he began, in his usual roundabout way. "I've always been adamant that gay and lesbian Americans should be treated fairly and equally." He pointed to his administration's repeal of the military's "Don't Ask, Don't Tell" policy and its refusal to defend the Defense of Marriage Act in court. He'd hesitated to embrace gay marriage, he said, out of respect for tradition and a belief that civil unions offered enough protection to same-sex partnerships.

    But now the president had changed his mind. "I've just concluded that, for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married," he said.

    The reasons for Obama's about-face, as he explained them, seemed perfectly normal. His thoughts, he said, had gone to his own staffers "who are in incredibly committed, monogamous relationships, same-sex relationships, who are raising kids together." He'd thought about the troops, fighting on his behalf, yet still facing the constraint of not being "able to commit themselves in a marriage." He talked about the values he wanted to pass on to his own children and the emphasis his own faith placed on the Golden Rule.

    As natural as Obama's statement may have sounded, his words were as carefully chosen as the interview. The testimonial to the gay men and women in his life; the discussion of values and the Golden Rule; the remarkable fact that America's first black president, discussing an issue many see as a modern civil-rights struggle (with a black interviewer, no less), made no reference to civil rights -- these were all talking points straight out of the new playbook of the gay-rights movement.

    The architect of this strategy was Evan Wolfson, a New York lawyer and gay-rights activist who heads a group called Freedom to Marry. Over the preceding months, Wolfson had briefed White House officials, including Valerie Jarrett -- the close Obama adviser often seen, for better and worse, as the president's liberal conscience -- on the findings of the group's years of research, findings that showed the most persuasive way of talking about gay marriage.

    And while Obama's reversal was instantly hailed as a watershed moment, behind the scenes, Wolfson and his allies were already well on their way to fulfilling an even grander ambition. Gratified to have finally lured the president to their side, the activists were quietly working to bring voters on board, too. Though gay marriage was already legal in six states and Washington, D.C., it had been granted each time by judicial fiat or legislative action -- voters had never yet endorsed same-sex marriage at the polls.

    That all changed on Election Day.
    Read more here: http://www.theatlantic.com/politics/...ngle_page=true
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    Quote Originally Posted by TheWalrus View Post
    I was going to post this in it's own thread, but the story is so goddamn long I don't think too many people are going to end up reading it.

    Anyway, here is what I think is an excellent story from The Atlantic on the gay marriage ballot initiatives that won in November. It covers historical aspects (especially Prop 8's shocking win in 2008), as well as how "same sex marriage" became "marriage equality" and the evolution in messaging and campaign tactics that led to the four state sweep this year.

    An excerpt:



    Read more here: http://www.theatlantic.com/politics/...ngle_page=true
    Waited a few days to read this thesis paper...i mean article, so i could read it all in one sitting. Its a damn good read. Even for those who are against marriage equality. It shows how groups shifted tactics from 2008 to 2012 and briefly explains cat-and-mouse tactics of the various campaigns.

    Great read, thanks for posting it. Going to be interesting how each group adapts to the next election. Good moral of the story also:
    As happy as Wolfson is that voters have ratified gay marriage, he contends that no group should have to have its rights voted on by its fellow citizens. "It's very hard for a minority to turn to the majority and say, 'Please vote to end discrimination,'" he said. "If it were that simple, we wouldn't need courts or a Constitution. The American idea is that certain protections can't be voted away, and the majority must accord equal terms to the minority." Until that happens, the fight continues.
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    Glad you enjoyed it. I think you highlighted the exact right quote, too. That notion is something I've tried to emphasize in political discussions around here, especially in regards to the debate over federalism and the right to privacy.
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    Dolphan7's Avatar
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    I think the SC will uphold gay marriage next year. You heard it here first folks, and this is from a die hard Christian. In light of the recent ruling on Obamacare, I no longer have any idea what this court actually stands for.

    Players come and go, but I will always be a Miami Dolphins Fan first and foremost.




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