US Supreme Court votes to take up issue of same sex marriage

[juanjo]

Personally I am not as blase about this as some people are. This is a serious issue and I think the court could go either way on this issue. Scalia, Roberts, Thomas and Alito will be solid against same sex marriage. Scalia because of his religion, Alito the same, Roberts because he does not believe in same sex marriage on constitutional reasons and Thomas because he does whatever Scalia tells him to do. There will be four votes on the other side most likely - Sotomayor, Kagan, Ginsburg and Breyer, with Kennedy being the swing vote.

Kennedy may not agree with the idea of same sex marriage coming into all the states via the court decision. The DOMA case was a lot easier for him simply because there were solid constitutional grounds about federal/state powers which were in play there. This time they are balanced the other direction on the federal/state issue [except for the Supremacy argument. i.e. the US Constitution is the supreme law of the land and trumps state law or constitution] and so it boils down to an acceptance of the 14th Amendment argument and there being no rational legislative basis for banning marriage rights for all. In other words SCOTUS has to shit or get off the pot.

 

[Beth]

While Pope Francis just pulled back on early "equality" statements. He said:

“The family is threatened by growing efforts on the part of some to redefine the very institution of marriage, by relativism, by the culture of the ephemeral, by a lack of openness to life,” Francis said at a Mass in Manila. “These realities are increasingly under attack from powerful forces, which threaten to disfigure God’s plan for creation.”

 

[joninliverton]

Not site related - please post in the correct place - lol

 

[Beth]

Not site related - please post in the correct place - lol

Oh, I beg to differ....

 

[Bill]

Personally I am not as blase about this as some people are. This is a serious issue and I think the court could go either way on this issue. Scalia, Roberts, Thomas and Alito will be solid against same sex marriage. Scalia because of his religion, Alito the same, Roberts because he does not believe in same sex marriage on constitutional reasons and Thomas because he does whatever Scalia tells him to do. There will be four votes on the other side most likely - Sotomayor, Kagan, Ginsburg and Breyer, with Kennedy being the swing vote.

Kennedy may not agree with the idea of same sex marriage coming into all the states via the court decision. The DOMA case was a lot easier for him simply because there were solid constitutional grounds about federal/state powers which were in play there. This time they are balanced the other direction on the federal/state issue [except for the Supremacy argument. i.e. the US Constitution is the supreme law of the land and trumps state law or constitution] and so it boils down to an acceptance of the 14th Amendment argument and there being no rational legislative basis for banning marriage rights for all. In other words SCOTUS has to shit or get off the pot.

I respectfully disagree and will also say that you are dead wrong.

This is how it's going to play out when the decision comes in June.

For marriage equality: Ruth Bader Ginsburg, Associate Justice, Stephen G. Breyer, Associate Justice, Sonia Sotomayor, Associate Justice, Elena Kagan, Associate Justice, Anthony M. Kennedy, Associate Justice, John G. Roberts, Jr., Chief Justice of the United States.

Against: Antonin Scalia, Associate Justice, Samuel Anthony Alito, Jr., Associate Justice, Clarence Thomas, Associate Justice.

That my friend, you can take to the bank.

Peace
Bill

 

[VULCAN]

I'm leaning towards a 6-3 vote in favor, with Kennedy (because he has a pro-gay record) record, and Roberts, if for no other reason, so he can create a legacy on his court. Say what you will, a chief justice of the Supreme Court is a politician is too, and concerned about image. But more than that, I think, Roberts is going to pull something out of left field, like the commerce clause, just as he pulled something out of left field not so long ago, but that time with a piece of legislation; Roberts is known for doing that. So I think Kennedy is a sure thing for siding with the four liberal justices, and Roberts is a somewhat maybe.

 

[juanjo]

Bill and Vulcan - I truly hope that you are both correct in your opinions. I will explain a little bit about why I think it is much tighter however. Roberts is a devout Roman Catholic as are Scalia, Thoma and Alito. Now Roberts is much less dogmatic and more pragmatic in his approach to the law. In 1996, Roberts provided pro bono assistance in the landmark gay rights case, Romer vs. Evans- which overturned a 1992 Colorado voter initiative which allowed employers and landlords to discriminate against gays. As a private practice attorney with Hogan and Hartson (1993-2003), Roberts provided "behind the scenes" support for the case.

Justice Roberts compares the chief justice's role in the Supreme Court to an umpire in baseball. "Justices and judges are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. Nobody ever went to a ballgame to see the umpire." In the DOMA case you will recall that Roberts voted against the majority. He looked at the case strictly in line with his role under the US Constitution. If you look at a number of his opinions in other areas such as the Texas case on race discrimination and the Obamacare decision he goes to great length to discuss how the court should defer to the legislature on its stated reasons for the actions they take. In the DOMA case he does this as well BUT while not signing on to the majority he points out that the evidence was clear that the intent of the law based on the rhetoric of the Congressional debate as well as the evidence from testimony before the lower court supported the position of animus against gay people which had no rational basis. However he also took Kennedy to task for his statement that "the State, by its marriage laws, sought to protect in personhood and dignity." He said there was no basis in the evidence before the Court to support that conclusion. Finally he looked at federalism as the ultimate determination here - that the individual states had the right to allow marriage for same sex couples if they so desired and the federal government had no jurisdiction under the Constitution to penalize them for doing so. That does not bode well for the present cases.

Kennedy is very hard to read on this issue. I appeared in front of Kennedy a few times when he was on the bench in Sacramento on different cases. He is a very smart man and very much a Constitutionalists. He looks first to the Constitution to see what applies to a case and its issues which is what a justice should go on the Supreme Court. He does not care about the issues Scalia or Alito do, in particularly Scalia who has a strong ideological bent which is firmly guided by his religious upbringing. He will look at the law and the Constitution as he has consistently done. His earlier rulings on gay rights have dealt with issue where he felt the balance tilted in favor of gay folks for example on sodomy laws because the right of privacy granted to all people under the Constitution applies to the bedroom as well as the living room. He had a long string of decisions by previous courts to support him there - The Griswold case on birth control and the Loving case on marriage being two examples. In the Romer case as well he went back to the issue that the constitutional amendment passed by the voters unfairly denied gay people the same rights as all citizens deserve under the Constitution without a legitimate legislative purpose since it was based simply on animus towards gay people. He firmly believes that gay people are protected by the Bill of Rights just as any other minority who is disliked. He will not rule in favor of discriminatory treatment in absence of a rational legislative purpose. That bodes well for him siding with a majority to overturn marriage bans in all states that still have them.

On the other hand he has repeatedly spoke favorably concerning the issue that marriage is an issue legitimately left to the individual states to decide and the federal government should not interfere. It is his own statements in his various rulings concerning the states right to decide this issue which those decision against same sex marriage have used to support their ruling in favor of the bans. He has also said that he was not closely following the lower court rulings that overwhelmingly interpreted that opinion as an endorsement of gay marriage. Even Justice Ginsburg has said that while Kennedy's 2013 opinion spoke of dignity for same-sex couples, it also referred to marriage laws as the states' domain. "Those don't point in the same direction," . One of his former law clerks, Washington lawyer John Elwood, says the justice has been consistent. "At this point, he's thought through the matter pretty carefully," Elwood said. "He would probably rule the way you'd expect, for same-sex marriage."

So I would say that Kennedy is much more of a wild card. He has positioned himself on both sides of the legal argument here. He could support a decision overturning these bans as being based on simple animus against gay people. But he could just as easily sign onto a decision affirming the right of the states to enact such bans as an expression of their state power under the concept of federalism. But the issue comes down to a simple one which Kennedy has held to in all his gay rights cases. It is best stated in an earlier Supreme Court decision. In 1943 the Supreme Court ruled in favor of Jehovah Witnesses who had been singled out by the state legislature for their religious belief that it was sinful to take oaths to a national authority of any type including reciting th Pledge of Allegiance. They state legislature passed a law requiring the recitation of the Pledge in all schools and required the expulsion of any student who did not do so thus requiring all JW children to either be expelled or violate their religious beliefs. The court struck down the law as a violation of the freedom of speech and freedom of religion. But the important language for our purposes is the following:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

I hope Kennedy rules in the favor of equal rights to marriage in all parts of the country but I am not completely certain he will. I see Roberts as much less likely to do so. He is much more conservative on this issue. It is not impossible but I do not see his desire for a legacy as overruling his very strong beliefs in federalism and the constitutional role of the Supreme Court.

 

[Bill]

juanjo

Kennedy made his case back in 2003 with the sodomy laws. I fully expect him to follow the same logic with marriage equality. As for chief Justice Roberts, please read the following links

http://www.slate.com/blogs/outward/2014/10/08/john_roberts_may_be_a_gay_marriage_swing_vote.html

http://www.outwordmagazine.com/inside-outword/glbt-news/188-chief-justice-roberts-protects-gay-marriage-law

http://www.newrepublic.com/article/120789/supreme-court-gay-marriage-john-roberts-could-change-his-mind

From the last link

Of course, that Roberts could not see his way to joining the majority in Windsor makes it difficult to understand how he might conclude that state laws prohibiting same-sex couples from marrying are unconstitutional. But it’s not impossible. He might, for example, look to the Supreme Court’s 1967 decision in Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional. In Loving, the Court described marriage as “one of the ‘basic civil rights of man,’” and noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” From these premises, it followed that “[t]o deny this fundamental freedom” on racial grounds violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As numerous lower courts have recognized, same-sex marriage bans are simply the modern analogue of interracial marriage bans, and they violate the Constitution for the same reason. Seventh Circuit Judge Richard Posner, for example, wrote in an opinion striking down same-sex marriage bans in Wisconsin and Indiana that the argument that tradition supported the bans “runs head on into Loving.” The Chief Justice could well conclude the same thing in the cases the Court has just agreed to hear.

That's the reasoning I fully expect him to make, also this is such a monumental civil rights case of our time now and under the Roberts court, yes he will look at this about his legacy and will want to be on the right side of history.

Of course this is just my opinion, but as someone who has followed these justices for a long time concerning this issue, I would be willing to bet the farm that my earlier prediction is correct.

Peace
Bill