What will the SCOTUS do with Perry vs. Schwarzenegger?

[TickTockMan]

Which three classes are you counting? As it is, there appears to be four if you are looking at the four levels of scrutiny used in fourteenth amendment cases.

Well I’m not that technical of a person when it comes to this stuff, but I was talking about the “straights” that can get married, the “queers” that can’t, and the “queers” that are.

 

[construct]

Well I’m not that technical of a person when it comes to this stuff, but I was talking about the “straights” that can get married, the “queers” that can’t, and the “queers” that are.

I see. That makes sense, but federal courts tend to defer to state courts in situations that don't involve federal law. I don't remember this case even mentioning that issue. Therefore, I doubt the Supreme Court would touch the holding that those marriages remain valid.

 

[TickTockMan]

I see. That makes sense, but federal courts tend to defer to state courts in situations that don't involve federal law. I don't remember this case even mentioning that issue. Therefore, I doubt the Supreme Court would touch the holding that those marriages remain valid.

Which is why I wrote what I did in post 24. I have a feeling Walker is going to play a big part in this at the SCOTUS level by what he writes and what he doesn't. I voted for "Strike down Proposition 8 only", but I feel "Strike down all constitutional gay marriage bans and statue bans" may be more viable depending on what Walker writes. I just took the pessimist view.


Ultimately I think their biases are going to rule the day. With the way the other side is still trying to play the PR game, and with it coming out Walker is gay, I think the three classes will play a part. Even if it is not too.


I don’t know if that makes sense, but I got to go.

 

[JasunStrikesBack]

If the SCOTUS had the chance to throw us all in jail, don't think they wouldn't do it in a heartbeat.

 

[construct]

If the SCOTUS had the chance to throw us all in jail, don't think they wouldn't do it in a heartbeat.

Oh come on, Jason. Justice Kennedy wrote the Lawrence opinion striking down all sodomy laws, and Justice Thomas described sodomy laws as uncommonly silly in his dissent. We don't know about Chief Justice Roberts or Justice Alito. So we've got at least six justices who don't want to send gay folk to jail.

 

[JB3]

If the SCOTUS had the chance to throw us all in jail, don't think they wouldn't do it in a heartbeat.

Really? This is the level you stoop to?

As construct said, we know 6 of the justice's views on the issue, and the remaining three we don't know enough to draw that conclusion.

 

[JasunStrikesBack]

The supreme court demonstrated just recently, when they sold the constitution and the next generation's elections to Walmart and the Oil Companies in the middle east, that they'll decide what result they want and work backwards through the legal muck.

The conservative movement doesn't like us having any rights at all. They'll give us lip service, pose for "NOH8" pictures and pretend that they'll repeal DADT when the military says it's time, but sure as Megan McCain likes an all-you-can-eat buffet, if there's a way they can punish us for being gay... they will.

 

[opinterph]

I wish I could go back and edit it

You can use the Report Post feature to request late edits.

 

[JB3]

The supreme court demonstrated just recently, when they sold the constitution and the next generation's elections to Walmart and the Oil Companies in the middle east, that they'll decide what result they want and work backwards through the legal muck.

The conservative movement doesn't like us having any rights at all. They'll give us lip service, pose for "NOH8" pictures and pretend that they'll repeal DADT when the military says it's time, but sure as Megan McCain likes an all-you-can-eat buffet, if there's a way they can punish us for being gay... they will.

You're an awfully hateful person. You don't know anything about a majority of these people, and you certainly don't know anything about how the supreme court might rule on this issue.

 

[JasunStrikesBack]

I think SCOTUS will go the full length and erase same-sex marriage bans. The reason I say this is the nature of the appeals process. I anticipate that the Ninth Circuit will rule in our favor, leaving SCOTUS with no choice but to making a broad ruling on same-sex marriage so as not to create inequality between states in the Ninth Circuit and the rest of the Union.

Well I hope you're right.

But I don't think you are.

I mean, the supreme court in California ruled that Prop 8 was legal and justified... what makes you think that it'll be any different at the national level?

Weren't there even 3 judges in Lawrence v Texas that said the government should be able to arrest us for having sex in our own homes?

 

[JasunStrikesBack]

You're an awfully hateful person. You don't know anything about a majority of these people, and you certainly don't know anything about how the supreme court might rule on this issue.

Oh lord, you're going to stalk me from thread to thread now, aren't you?

Jesus, and I'd just made peace with Sultan, too.

 

[construct]

Really? This is the level you stoop to?

As construct said, we know 6 of the justice's views on the issue, and the remaining three we don't know enough to draw that conclusion.

Actually, we do know Justice Scalia's view on the issue. He'd just as soon we be punished. I draw this conclusion from the reasoning he advanced in his dissent in Lawrence coupled with his not joining Justice Thomas's dissent.

Scalia framed the issue as whether there is a constitutional right to sodomy. He would not have overruled Bowers v. Hardwick and adopted its reasoning that preservation of public morals was reason enough to uphold state sodomy laws. The fact that he didn't join Thomas's dissent shows that he does not think sodomy laws are silly.

Thomas does not believe there is a substantive element in the due process clauses despite tons of precedent and does believe in the importance of preserving public morals. Therefore he could join Scalia's dissent and clarify his position in a separate dissent.

Scalia and Thomas are quite different in their jurisprudence. They really shouldn't be lumped together quite as glibly as they often are.

 

[construct]

The supreme court demonstrated just recently, when they sold the constitution and the next generation's elections to Walmart and the Oil Companies in the middle east, that they'll decide what result they want and work backwards through the legal muck.

Citizens United v. Federal Election Comm'n did not work backward from a desired outcome. It carefully analyzed the precedent to arrive at its conclusion.

Furthermore it is not germane because it is not a due process or equal protection case. We can see what seven of the justices think about sodomy laws.

 

[construct]

I think SCOTUS will go the full length and erase same-sex marriage bans. The reason I say this is the nature of the appeals process. I anticipate that the Ninth Circuit will rule in our favor, leaving SCOTUS with no choice but to making a broad ruling on same-sex marriage so as not to create inequality between states in the Ninth Circuit and the rest of the Union.

I hope you realize that if they overrule the 9th Circuit and uphold DOMA, there would still be uniformity among the states or at least among the circuits.

The Supreme Court in California represents a different type of judicial review from that of SCOTUS. The California high court can only use its own state constitution to strike down laws.

Not so. The California Supreme Court (or any other court for that matter) can use the U.S. Constitution to strike down laws if that issue is raised. The Prop. 8 case did not raise it.

 

[construct]

^^^

I think it's plainly obvious that Scalia holds arbitrarily contrived public morals over equal access to the law. In other words, it doesn't matter how much harm laws do as long as they have a strong traditional moral basis as state governments have determined.

If I understand you correctly, I agree, and Justice Thomas would agree with Scalia. Now this all holds only with respect to substantive due process. That's where your "deeply rooted in traditional morals" test comes into play. I think they pretty much agree that procedural due process applies to all.

The equal protection argument is a little different. In Romer and Lawrence, Justice Kennedy deftly avoided saying what level of scrutiny he was using. Justice Scalia was very clearly using a rational basis test. Thus Scalia could decide against us (along with Justice Thomas) in both cases.

 

[construct]

Yes, I fully realize that, but I think they're unlikely to do that if all of them are consistent in their interpretations of the 14th amendment.

That's curious. I'm left wondering why they chose this method.

That case was arguing only a technicality about state law. They avoided the federal question because they didn't want to take it to the Supreme Court. You know, the leading legal organizations that have been spearheading the marriage cases were not happy that Perry was filed. They still have misgivings about such a case being appealed to the Supreme Court.

 

[Kulindahr]

I think SCOTUS will go the full length and erase same-sex marriage bans. The reason I say this is the nature of the appeals process. I anticipate that the Ninth Circuit will rule in our favor, leaving SCOTUS with no choice but to making a broad ruling on same-sex marriage so as not to create inequality between states in the Ninth Circuit and the rest of the Union.

That's a reason they might take the case, but either way it's decided will leave everyone on the same basis.

I mean, the supreme court in California ruled that Prop 8 was legal and justified... what makes you think that it'll be any different at the national level?

The basis for the ruling on Prop 8 was a rather obscure little detail that has no counterpart on the national level. Given the nature of the detail, they were rather boxed in, and had good reason for their decision.

Actually, we do know Justice Scalia's view on the issue. He'd just as soon we be punished. I draw this conclusion from the reasoning he advanced in his dissent in Lawrence coupled with his not joining Justice Thomas's dissent.

Scalia framed the issue as whether there is a constitutional right to sodomy. He would not have overruled Bowers v. Hardwick and adopted its reasoning that preservation of public morals was reason enough to uphold state sodomy laws. The fact that he didn't join Thomas's dissent shows that he does not think sodomy laws are silly.

Of course there's a constitutional right to sodomy -- it doesn't harm anyone, it's consensual, and it doesn't threaten the security of the nation.

Thomas does not believe there is a substantive element in the due process clauses despite tons of precedent and does believe in the importance of preserving public morals. Therefore he could join Scalia's dissent and clarify his position in a separate dissent.

Scalia and Thomas are quite different in their jurisprudence. They really shouldn't be lumped together quite as glibly as they often are.

I'd like to get an answer from both of them as to where the "public morals" clause is in the Constitution.

^^^

I think it's plainly obvious that Scalia holds arbitrarily contrived public morals over equal access to the law. In other words, it doesn't matter how much harm laws do as long as they have a strong traditional moral basis as state governments have determined.

Scalia and Thomas both do. They elevate their own moral code to the level of a restriction of the Constitution in all its parts.

 

[construct]

Of course there's a constitutional right to sodomy -- it doesn't harm anyone, it's consensual, and it doesn't threaten the security of the nation.

Where is that test found in the Constitution--or in constitutional law for that matter? Kennedy didn't frame the issue that way anyway.

I'd like to get an answer from both [Thomas and Scalia] as to where the "public morals" clause is in the Constitution.

That's easy. It's in the due process clauses of the fifth and fourteenth amendment. It is one of the tests to determine whether a liberty is fundamental.

 

[construct]

As construct said, we know 6 of the justice's views on the issue, and the remaining three we don't know enough to draw that conclusion.

Actually, we do know Justice Scalia's view on the issue. He'd just as soon we be punished. I draw this conclusion from the reasoning he advanced in his dissent in Lawrence coupled with his not joining Justice Thomas's dissent.

It occurs to me that Droid800 might be referring to Justice Sotomayor. Yes, I'm counting her in the "liberal" wing. However, it is conceivable that I may be wrong about that. I don't think I'm wrong.