SCOTUS looks at proposition 8 today

[Kelsium]

This is so exciting!
http://www.latimes.com/news/politics...,5364731.story

And i believe they are looking at DOMA tomorrow. If these cases are overturned it could set a huge precedent that will change the social climate of the US!

what does everyone think?

[adpiucf]

The argument in support of prop 8 is best summarized by directing quoting today's oral arguments: "The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults."

Translation: the reason to deny same-sex marriage is because marriage is solely for child-rearing and to allow same-sex marriage means that the purpose of marriage is for adult companionship.

There is an implicit logical assumption that if the purpose of marriage is solely procreative, then Prop 8 proponents would argue that someone who does not want or cannot have children because of age, medical, financial, or personal reasons should be denied the right to marry.

I would also like to point out that California, where Prop 8 originated, is a state that allows gays to adopt. And their strongest argument against allowing gay parents to marry is because "[t]he Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences."

Translation: We don't know if anything bad could come of it, but we shouldn't do it because maybe something bad would come of it."

I look forward to hearing SCOTUS' opinion on this. I am guessing they won't rule until the end of May/June.

[MysticCat]

Originally Posted by adpiucf

I look forward to hearing SCOTUS' opinion on this. I am guessing they won't rule until the end of May/June.

I would expect the opinion to come out the last week of term, at the end of June.

Just based on the bits and pieces I have heard of and about today's argument, I won't be surprised if the Court punts, either by holding that the petitioners (those in support of Prop 8) lack standing -- which would leave in place the district court's opinion invalidating Prop 8 -- or by a terse order dismissing the writ of certiorari as "improvidently granted" -- which would leave in place the 9th Circuit's opinion invalidating Prop 8.

[adpiucf]

I think you are right, MysticCat. And then, of course, there's this.

[Kelsium]

the equal protection clause of the 14th amendment will be a tricky one to get around. Does anyone know if strict scrutiny has been granted to the opponents of proposition 8?

[Psi U MC Vito]

I didn't realize v what lack of standing would mean. Though something Justice Kennedy said make me think that prop 8 will be stuck down.

[Kelsium]

I for one am anxious to hear what Scalia has to say on this one.

[Kevin]

Here's the full transcript.

http://www.scribd.com/fullscreen/132...s3qrfmtp6py33j

[Kelsium]

Originally Posted by Kevin

Here's the full transcript.

http://www.scribd.com/fullscreen/132...s3qrfmtp6py33j

thanks! this will be interesting.

[MysticCat]

Originally Posted by Kelsium

the equal protection clause of the 14th amendment will be a tricky one to get around. Does anyone know if strict scrutiny has been granted to the opponents of proposition 8?

They can easily get around if they want to. They can avoid it altogether by finding the petitioners have no standing or finding cert improvidently allowed, or they can hold that the jury is still out, so to speak, on whether same-sex marriage creates any problems and that states therefore can reasonably exercise their judgment on the question.

I said earlier I think they'll punt, and I still would wager on that after hearing more reports and reading some of the transcript. My hunch is that enough of the justices, conservative and liberal, will want to avoid another Roe v Wade, which J Ginsburg has described as the right decision, but a decision that went too far too fast. I'd guess they'll prefer to let the debate and the political process play out, rather than have the Court decide by fiat for the whole country.

Yes, for proponents of same-sex marriage that will take longer, but it tends to result greater public "buy in" as it were when the people, either at the ballot box or through their elected representatives, decide the issue rather than having the (unelected) judiciary decide it for them. And the Court can see as well as anyone where the momentum on this is headed.

Originally Posted by Low C Sharp

You mean by the Ninth Circuit? The Supreme Court has never held that strict scrutiny should be applied in cases of discrimination based on sexual orientation. The best SCOTUS cases for gay rights proponents (Romer v. Evans and Lawrence v. Texas) are based on either rational-basis scrutiny with teeth, or intermediate scrutiny, depending on which commentator you ask.

But Loving v Virginia does speak of marriage as a fundamental right. If they wanted to go down that road, that could lead to strict scrutiny as equal protection claims of denial of a fundamental right involve strict scrutiny regardless of whether the plaintiff is a member of a suspect class or not.

As best I can tell, the trial and appeals courts avoided the scrutiny question altogether by saying that there was no legitimate basis for Prop 8, rational or compelling or whatever.

[ZetaPhi708]

Take a listen to this amazing young man's letter to Chief Justice Roberts...

http://youtu.be/W_bAiTwJAnc

[Kevin]

Not sure about the standing issue. If there's no standing here, can a state prevent the challenging of an unconstitutional measure by simply failing to respond to it? If that's true, that's a really scary concept. Could a state pass a law banning the use of birth control and defend it by simply not defending it because you can't obtain default judgment against the state?

[MysticCat]

Originally Posted by Kevin

Not sure about the standing issue. If there's no standing here, can a state prevent the challenging of an unconstitutional measure by simply failing to respond to it? If that's true, that's a really scary concept. Could a state pass a law banning the use of birth control and defend it by simply not defending it because you can't obtain default judgment against the state?

I've had trouble all along with the California AG's decision not to defend Prop 8. Regardless of what he personally feels about, unless it clearly is unconstitutional, the people of a state have a right to expect that the elected official whose job it is to defend state laws will in fact defend state laws. Otherwise, one or two elected officials essentially have veto power over the electorate.

[Kevin]

It sets up a really odd framework. What do folks who want the case to move forward do? Obtain a Writ of Mandamus from the state Supreme Court requiring the AG to respond to a suit or appoint independent counsel?

[Psi U MC Vito]

Originally Posted by MysticCat

I've had trouble all along with the California AG's decision not to defend Prop 8. Regardless of what he personally feels about, unless it clearly is unconstitutional, the people of a state have a right to expect that the elected official whose job it is to defend state laws will in fact defend state laws. Otherwise, one or two elected officials essentially have veto power over the electorate.

But there is danger in just one person thinking it is unconstitutional. I actually see parallels to President Obama refusing to allow his administration to defend DOMA. I think that the legislature has a responsibility to insure a bill doesn't violate the constitution before it is passed, but if they fail to do so, it is still the executive's duty to defend that bill in court until told other wise.