The Supreme Court, Gay Marriage, and Anthony Kennedy

[Stevenson]

So the Supremes are going to decide on the federal constitutionality of gay marriage this spring. Many court watchers think that Anthony Kennedy will be the deciding vote one way or the other.

I've shared this before, but will again here. Kennedy taught at my law school. His dear friend and mentor was the dean of the school. It was common knowledge on campus that the dean was also a closeted gay man. As a result, gay rights and discrimination are not something that are theoretical issues for Anthony Kennedy. He watched one of his closest friends deal with them daily. There is just no way I see Kennedy striking down gay marriage, especially as the states have given it momentum (and thus legal cover for him if so desired.)

 

[Denny Crane]

I'd be surprised if it really ends up a 5-4 vote. I think the court contrives votes, sometimes, to match how close the issue is among the people.

 

[Stevenson]

I think you're actually right Denny. I don't see Roberts letting something so significant squeek by. At the least, he joins the majority. 6-3.

 

[3RA1N1AC]

Can you bet on this? This is some sweet insider information!

 

[Denny Crane]

It may be a 7-2 vote. The only reason to vote no is on a technicality at this point. Like the Court butting out altogether.

 

[barfo]

It may be a 7-2 vote. The only reason to vote no is on a technicality at this point. Like the Court butting out altogether.

7-2? Which one of Scalia, Thomas, or Alito do you think is going to vote w/ the majority?

barfo

 

[Denny Crane]

Alito.

 

[barfo]

Alito.

Well, of the three, he is the most likely, but that's a bit like saying being killed by lightning is more likely than being killed by {two other unlikely events}.

Will believe it when I see it.

barfo

 

[Denny Crane]

With the majority of states allowing gay marriage, the question is no longer about a fundamental right, but whether the right defined by those states (which Alito is fine with) need be recognized by the rest. I see several constitutional reasons why the court should find it legal everywhere. I bet Alito sees them, too.

1. 14th amendment - the states cannot treat people unequally under the law without a real compelling interest. There is a compelling interest for affirmative action, but there isn't one to deny people right to marr
2. A marriage performed in California is recognized in New York without a second thought. Constitutionally speaking, one state has to respect the legal papers of the others.
3. The government should not obstruct the right of the people to pursue happiness.

 

[barfo]

With the majority of states allowing gay marriage, the question is no longer about a fundamental right, but whether the right defined by those states (which Alito is fine with) need be recognized by the rest. I see several constitutional reasons why the court should find it legal everywhere. I bet Alito sees them, too.

1. 14th amendment - the states cannot treat people unequally under the law without a real compelling interest. There is a compelling interest for affirmative action, but there isn't one to deny people right to marr
2. A marriage performed in California is recognized in New York without a second thought. Constitutionally speaking, one state has to respect the legal papers of the others.
3. The government should not obstruct the right of the people to pursue happiness.

I agree with you except you have more faith in Alito than I do. Of course, any faith in Alito is more than I have...

barfo

 

[Denny Crane]

http://www.businessinsider.com/supreme-justices-opinions-on-gay-marriage-2015-1

Justice Samuel A. Alito added to Justice Robert's opinion, saying "I hope that the Court will ultimately permit the people of each State to decide this question for themselves."

Alito appears to be firm in his view that states should be the ones to decide these issues. In July last year, Alito denied a request from a county clerk in Pennsylvania who wanted the Supreme Court to stop same-sex marriages there.

...

In the court order announcing the new case Friday, the Court made clear it will be answering the larger constitutional questions surrounding gay marriage. Specifically, the justices will rule on two questions; whether the Fourteenth Amendment requires "a state to license a marriage between two people of the same sex" and whether it requires states to "recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state."

(pretty much #1 and #2 as I stated, and this is no longer a case of the Court deciding for the states, they've already done so)

 

[MARIS61]

The Supreme Court is a farce. Completely comprised of political appointees hand-picked by the 1%er's, they've ruled corporations are people while not too long ago ruled people with dark skin weren't really people at all. Every vote they cast is guided solely by their political views and/or to buy attendance at parties of the ultra-elite. SCOTUS has always been a black stain on the Flag of Freedom.

If accurate interpretation of the law was really at play, and the members of the court were all at least knowledgeable about the subject and un-biased, most decisions would be unanimous.

 

[MARIS61]

Well, of the three, he is the most likely, but that's a bit like saying being killed by lightning is more likely than being killed by {two other unlikely events}.

Will believe it when I see it.

barfo

One estimate is that 24,000 people are killed by lightning strikes around the world each year and about 240,000 are injured.[3] Another estimate is that the annual death toll is 6,000.[4]

According to the NOAA, over the last 20 years, the United States averaged 51 annual lightning strike fatalities, placing it in the second position, just behind floods for deadly weather.[5][6] In the US, between 9% and 10% of those struck die,[7] for an average of 40 to 50 deaths per year (28 in 2008).[8] The chance of an average person living in the US being struck by lightning in a given year is estimated at 1 in 500,000, while the chance of being struck by lightning in a lifetime is 1 in 6250 (estimated lifespan of 80 years).[9]

These statistics do not reflect the difference between direct strikes, where the victim was part of the lightning pathway; indirect effects of being close to the termination point, like ground currents; and resultant, where the casualty arose from subsequent events, such as fires or explosions. Even the most knowledgeable first responders may not recognize a lightning related injury, let alone particulars, which a medical examiner, police investigator or on the rare occasion a trained lightning expert may have difficulty identifying to record accurately. This ignores the reality that lightning, as the first event, may assume responsibility for the overall and resulting accident.

Direct strike casualties could be much lower than reported numbers.

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

http://www.lightningsafety.noaa.gov/fatalities.htm

 

[Stevenson]

I've been telling you guys for years that my law school dean was going to be a big reason why Anthony Kennedy would be the 5th vote. Here's an article that gives details to what I was saying

http://www.nytimes.com/2015/06/22/us/kennedys-gay-rights-rulings-seen-in-his-sacramento-roots.html

Great day for human rights!

 

[Denny Crane]

Roberts dissented. I understand his POV.

http://www.washingtonpost.com/blogs...ssent-constitution-had-nothing-to-do-with-it/

"If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it."

Seems he's for it, but thinks the law should be decided democratically.

 

[magnifier661]

Congrats to the LBGC. It's a good day

 

[magnifier661]

I'd be surprised if it really ends up a 5-4 vote. I think the court contrives votes, sometimes, to match how close the issue is among the people.

Wow you nailed it!

 

[Denny Crane]

Wow you nailed it!

I'm getting a better read on Roberts.

He upholds ObamaCare though clearly unconstitutional and is against this ruling for the exact same and consistent reason. "Elections have consequences" and the court should butt out.

 

[magnifier661]

I'm getting a better read on Roberts.

He upholds ObamaCare though clearly unconstitutional and is against this ruling for the exact same and consistent reason. "Elections have consequences" and the court should butt out.

Can you tell me who is gonna be president now? It will help with the stocks I choose to buy!

 

[Denny Crane]

Can you tell me who is gonna be president now? It will help with the stocks I choose to buy!

Buy stocks in companies that donate heavily to democrats. They get great quid pro quo.

 

[julius]

I find it funny that Santorum complained about the decision, (5-4, unelected judges, etc)...yet if they had overturned Obamacare he would've accepted it without question.

 

[kingslayer]

I find it funny that Santorum complained about the decision, (5-4, unelected judges, etc)...yet if they had overturned Obamacare he would've accepted it without question.

Judicial tyranny from unelected judges!!1!!!!*

*Except in cases in which I'm in agreement with.

 

[kingslayer]

Roberts' dissent points out that it should be left to the democratic process to decide such matters but isn't one of the duties of the Judicial branch to ensure that the constitutional rights of minorities are not oppressed by the majority?

 

[Denny Crane]

Roberts' dissent points out that it should be left to the democratic process to decide such matters but isn't one of the duties of the Judicial branch to ensure that the constitutional rights of minorities are not oppressed by the majority?

Yeah, but I think the states were moving toward that without the court.

 

[Stevenson]

Yeah but we live in one country, not a confederation. National issues deserve national attention and national resolution. States rights is so overblown,

 

[Denny Crane]

Yeah but we live in one country, not a confederation. National issues deserve national attention and national resolution. States rights is so overblown,

I don't think it's about states' rights.

It's about 5 or 9 lawyers deciding for the country vs. democratic (small "d") means of deciding things.

If Roberts thought the way you do, ObamaCare would have been ruled unconstitutional the first time it went to SCOTUS.

"Elections have consequences." -- Roberts

 

[crandc]

Roberts is a corporate tool. He consistently rules against workers and consumers in favor of corporations. The ACA ruling was pro-corporate. The insurance industry is solidly behind it, among others. I thought that might make him vote in favor of marriage equality. Many companies have said that recruiting employees can be harder when the employee could be married in one state and not-married in another. Companies often feel married employees are more stable. Numerous large corporations filed amicus briefs in favor of marriage equality, while the anti equality side was simply religious prejudice against gays and lesbians. I thought Roberts might make it 6-3 on the basis that corporate America favors marriage equality.

But bigotry was stronger.

 

[Denny Crane]

Bigotry had nothing to do with Roberts' thought process.

He didn't at all write anything like "same sex marriage should be outlawed altogether." Quite the opposite, he suggests everyone cheer the result. Just that he felt the result should have been arrived at democratically instead of by decision of 9 lawyers.

 

[kingslayer]

Love this from Kennedy's opinion:

There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.

Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

Suck it, Roberts.

 

[Denny Crane]

With the majority of states allowing gay marriage, the question is no longer about a fundamental right, but whether the right defined by those states (which Alito is fine with) need be recognized by the rest. I see several constitutional reasons why the court should find it legal everywhere. I bet Alito sees them, too.

1. 14th amendment - the states cannot treat people unequally under the law without a real compelling interest. There is a compelling interest for affirmative action, but there isn't one to deny people right to marr
2. A marriage performed in California is recognized in New York without a second thought. Constitutionally speaking, one state has to respect the legal papers of the others.
3. The government should not obstruct the right of the people to pursue happiness.

My opinion.