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Thread: SCOTUS To Decide on Marriage Equality

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    Politics.ie Member livingstone's Avatar
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    Default SCOTUS To Decide on Marriage Equality

    So, this isn't quite news, as it was announced a few months ago, but the hearings are due next week where the US Supreme Court will decide whether to uphold the ruling that the California prohibition on gay marriage violates the US Constitution, and also to decide on whether the Defence of Marriage Act is constitutional.

    This has the potential to be as historic in US jurisprudence as Brown v Board of Education - the case that decided that racial equality wasn't just an issue for the States but was a matter of federal law, and requirements under the Federal constitution. If the SC rules that Prop 8 was unconstitutional, then, effectively, they will pave the way for marriage equality right across the US regardless of State views.

    What's interesting is that Vaughan Walker's judgement striking down Prop 8 was very carefully crafted, with many legal scholars thinking that he'd crafted his judgement in a way designed to appeal, in particular, to Anthony Kennedy. He made a number findings of fact, which SCOTUS cannot overturn - they must accept his findings of fact and decide whether, based on those facts, he was correct in law to decide that a prohibition on gay marriage violates the US Constitution.

    This is all in the context of major evolution in US attitudes to marriage equality. When Obama said that he favoured gay marriage, and people were saying on here that it didn't matter, I pointed out that if he won re-election, he would send the message that being pro-marriage equality was no longer an electoral liability. And since then, we've seen a flurry of politicians also come out in favour of marriage equality, including some Republicans (Steve Schmidt, Jon Huntsman, Rob Portman).

    More recently, only yesterday, Hilary Clinton posted a six minute video explaining her support for gay marriage. And a poll released, also yesterday, showed 58% of people supporting gay marriage. http://www.washingtonpost.com/blogs/...post-abc-poll/

    This is relevant - what we know about John Roberts is that as much as he is a conservative, he is also a legacy-hunter who will be, I believe, reluctant to place the SC on the wrong side of history. We saw that in his contortions on the Affordable Care Act. While I doubt that Roberts will be one of the votes supporting gay marriage, I do think we could be in for a majority overturning Prop 8. It's difficult to overstate the impact that would have on marriage equality around the world - certainly in western nations, like Australia, or Germany or Ireland it will be difficult to resist marriage equality when the most powerful cultural influence in the western world allows it.
    Last edited by livingstone; 19th March 2013 at 01:33 PM.

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    Moderator NYCKY's Avatar
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    I agree that the case has the potential to be historic in terms of Supreme Court judgements. I also agree that Roberts has his eye on his legacy and as he is only in his late 50s, he could serve another two decades on the court by which time gay marriage will probably be legal in dozens of states.

    The two cases are somewhat intertwined and it's hard to see how they could come up with different results but I could see these as being overturned even with as much as a 6-3 vote. I can't see Thomas, Alito or Scalia overturning them but I could see any combination of the others.

    The "evolution" will continue and it will be on both sides politically speaking. I think a positive Supreme Court ruling would be a positive on this issue as it takes it off the table as an electoral issue across the country. The US has many issue and gay marriage shouldn't be one of them.

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    Politics.ie Member storybud1's Avatar
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    Marriage as an institution is a joke in the U.S. (pasted)

    The divorce rate in America for first marriage, vs second or third marriage

    50% percent of first marriages, 67% of second and 74% of third marriages end in divorce, according to Jennifer Baker of the Forest Institute of Professional Psychology in Springfield, Missouri.

    According to enrichment journal on the divorce rate in America:

    The divorce rate in America for first marriage is 41%
    The divorce rate in America for second marriage is 60%
    The divorce rate in America for third marriage is 73%

    apparantly Catholics and Lutherans are least likely to divorce amongst the Religious lot and only 0.2% of the population in the UK have obtained a gay marriage.

    I am more interested in when people start saying they are in a "straight" marriage and the liberal thought police try to ban this phrase as offensive and homophobic. (the 0.2% have the liberals by the nuts) oh, wait , that is why nobody, and I mean nobody in the real world outside a university votes for Ivana.

    it is just so funny that the liberals guilt trip the straights to allow gay people to marry when most of them don;t even understand marriage in the first place. I'm just saying like,,

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    Moderator Munnkeyman's Avatar
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    This is the best bit of your post.

    Quote Originally Posted by storybud1 View Post
    it is just so funny that the liberals guilt trip the straights to allow gay people to marry when most of them don;t even understand marriage in the first place. I'm just saying like,,

    This was a close second -

    I am more interested in when people start saying they are in a "straight" marriage and the liberal thought police try to ban this phrase as offensive and homophobic. (the 0.2% have the liberals by the nuts)
    Flash a-ah - King of the impossible

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    Politics.ie Member Cruimh's Avatar
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    Quote Originally Posted by Munnkeyman View Post
    This is the best bit of your post.




    This was a close second -
    Those must have moved him to the top of the list for replacement Mods?

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    Politics.ie Member livingstone's Avatar
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    Quote Originally Posted by NYCKY View Post
    I agree that the case has the potential to be historic in terms of Supreme Court judgements. I also agree that Roberts has his eye on his legacy and as he is only in his late 50s, he could serve another two decades on the court by which time gay marriage will probably be legal in dozens of states.

    The two cases are somewhat intertwined and it's hard to see how they could come up with different results but I could see these as being overturned even with as much as a 6-3 vote. I can't see Thomas, Alito or Scalia overturning them but I could see any combination of the others.

    The "evolution" will continue and it will be on both sides politically speaking. I think a positive Supreme Court ruling would be a positive on this issue as it takes it off the table as an electoral issue across the country. The US has many issue and gay marriage shouldn't be one of them.
    Mostly agree, though I can see how they would come up with different results.

    I think the best argument against the constitutionality of DOMA is that marriage is an issue for the States, and the Federal Government has no constitutional right to limit or refuse to recognise validly and legally constituted marriages conducted in each state.

    Now, of course, if you go down that road, implicit in that suggestion is that States have a right to define marriage, which would mean that Prop 8 was legal and valid.

    So in theory I can see how the SC might arrive at the decision that DOMA is unconstitutional but that states have the right to prohibit gay marriage.

    Now, in the alternative, if the SC agrees that there is a Constitutional right to marriage equality, then I think you're right - they can't uphold DOMA while recognising a constitutional right to gay marriage - the effect of that would be to impose a requirement on all fifty states individually to recognise gay marriage but not the Federal government, which would be bizarre.

    So if they strike down Prop 8, then they will also strike down DOMA.

    But I think there is a legally justifiable way (albeit not one I agree with) for them to uphold Prop 8 but strike down DOMA.

    It might be interesting if they uphold both Prop 8 and DOMA, because upholding DOMA concedes that marriage is not a purely state issue. This is easy to argue - you could easily argue that interstate commerce depends on uniformity of marriage and family recognition so that workers and companies etc can move from state to state freely. But once you get into the territory of accepting that it is open to the Federal Government to define marriage, then at some point in the future you will, inevitably, see the fed govt do just that. Not now because marriage equality doesn't have the votes. But in the future.

  7. #7

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    There is and can be no such thing as gay marriage. Gay unions, gay partnerships, yes. Marriage? No.
    ''The tattoo has a profound meaning: the superficiality of modern man’s existence.'' - Theodore Dalrymple

    "Any fool can make something complicated. It takes a genius to make it simple." - Woody Guthrie

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    Dylan2010
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    Quote Originally Posted by Mossy Heneberry View Post
    There is and can be no such thing as gay marriage. Gay unions, gay partnerships, yes. Marriage? No.
    its just a word? why not?

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    Politics.ie Member Dame_Enda's Avatar
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    Kennedy is hard to read on this issue. He has been moderate on gay rights. I say the challenge will fail though on originalist grounds i.e. that the Equal Treatment clause was not originally intended to allow for this. The conservatives on the court tend towards originalism, while the liberals support a "living constitution" whose meaning evolves with the times. Kennedy is known though for citing international law in his decisions at times, so it will be interesting to see if that influences things. But on balance I predict the usual 5-4 split.
    Real News.

  10. #10

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    Quote Originally Posted by Dylan2010 View Post
    its just a word? why not?
    It is not just a word. Government cannot and should not be allowed to define and dictate how we view human relationships(for concensual adults).

    I have absolutely nothing against gays. If two men want to live together or four women for that matter, I don't care but don't tell me the government has a right to tell me to accept their relationships as marriages.
    ''The tattoo has a profound meaning: the superficiality of modern man’s existence.'' - Theodore Dalrymple

    "Any fool can make something complicated. It takes a genius to make it simple." - Woody Guthrie

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