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Obergefell v. Hodges: Get your bets inFollow

#1 Apr 29 2015 at 11:21 AM Rating: Excellent
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Yesterday, the Supreme Court heard arguments in Obergefell v. Hodges., the case with the potential to make same sex marriage the law of the land in the US. The case is actually in two parts:
(A) Do same sex couples have a constitutional right to marry?
(B) Are states constitutionally required to acknowledge and respect same sex marriages from other states?

This effectively gives the pro-SSM argument two chances to "win" since, if (B) passes, it's a matter of finding a state allowing SSM even if yours does not.

Anyway, Kennedy is the obvious swing vote and reports seem to indicate that he was inclined towards "Yes" on issue A but not so much so that it's time to start popping the champagne. On issue B, Kennedy was silent (which some took as a good sign since if the answer to A is "yes" then B is moot) but Roberts made a few comments hinting that he may be inclined to support B as a de facto way of giving SS couples the right without stating that there is a constitutional right directly to SSM. The final vote among the Justices is later this week and a ruling will be issued in late June.

You are totally qualified to make the guess
SCotUS rules "Yes" on (A):11 (57.9%)
SCotUS rules "Yes" on (B):7 (36.8%)
SCotUS rules "No" on both (A) & (B):1 (5.3%)
Total:19


No reason to have an option for yes on both A & B since a yes on A trumps B.
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#2 Apr 29 2015 at 12:10 PM Rating: Good
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Going with B. It lets everyone weasel out of touching the US Bible that is the Constitution as much as A.

That doesn't sound too English to me. B is the safest choice is what I'm getting at.

Edited, Apr 29th 2015 2:29pm by lolgaxe
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#3 Apr 29 2015 at 12:58 PM Rating: Good
I voted B, but I think A has about as equal a chance of getting Kennedy's vote. It settles the question once and for all, while B is begging for another half dozen law suits that'll eventually lead back to A anyway. A now finalizes the question until someone gets around to encoding or disputing it in the Constitution. B kicks that can down the road for a while - which is why I voted for it, since the SCOTUS doesn't mind a little can-kicking if they're violently divided. (See: Prop 8 in California.)
#4 Apr 29 2015 at 1:46 PM Rating: Default
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I remember asking why the SCOTUS didn't do this years ago. It would save a lot of time and money.
#5 Apr 29 2015 at 1:59 PM Rating: Excellent
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'Cause they didn't want to. Really, that's it. They didn't want to make the lasting call.

They were sort of forced into it when there was finally a split on the circuit court decisions and one said "no" after the others had said "yes". So now it goes up to the next level.
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#6 Apr 29 2015 at 3:25 PM Rating: Excellent
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It's like when the kids are fighting and you're not getting involved even though it's past the point where you probably need to step in. Instead you're too busy doing more important things so you rely on that slim chance they're actually going to work something out this time.

You're almost always wrong of course, but at least you don't have to eat a burnt grilled cheese sandwich on top of everything else.
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#7 Apr 29 2015 at 3:58 PM Rating: Default
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Jophiel wrote:
Yesterday, the Supreme Court heard arguments in Obergefell v. Hodges., the case with the potential to make same sex marriage the law of the land in the US. The case is actually in two parts:
(A) Do same sex couples have a constitutional right to marry?
(B) Are states constitutionally required to acknowledge and respect same sex marriages from other states?

This effectively gives the pro-SSM argument two chances to "win" since, if (B) passes, it's a matter of finding a state allowing SSM even if yours does not.


The question isn't "Do same sex couples have a constitutional right to marry?", but "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?". As I've stated many times in past discussions, the "right to marry" is not identical to the requirement that the state license that marriage. The plaintiffs would need to show that by not granting a license for a state marriage status to a gay couple, a citizens (two in this case) fundamental rights are violated.

In Loving, the standard used (which is used commonly in discrimination cases) wasn't whether the law is discriminatory, but whether the discrimination follows the intended purpose of the law *and* that the intended purpose of the law is not itself to discriminate. In the case of barring people of different races to marry, it was found that the law itself served no purpose but to discriminate along racial lines between two people who would otherwise qualify for marriage status. Furthermore, the law in question actually made it illegal to marry in another state and then return and live "as man and wife" in Virginia, subjecting the couple to criminal punishment, not just denying them state benefits. So not terribly applicable to the issue of gay marriage.

I think you'd have a hard time arguing that existing marriage laws, which have defined marriage as between one male and one female all along, were written specifically to discriminate on the basis of sexual orientation. This is further complicated by the issue of procreation. I know that many of you don't like to hear this old broken record, but the origin of the idea of marriage as a "basic civil right" (mentioned in Loving) comes from Skinner v Nebraska, which wasn't about marriage, but about procreation, and the full quote was "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." The case was not about marriage, but sterilization. The obvious point being that procreation is fundamental to marriage. There's clearly no interpretation of Skinner that could cause one to think that marriage is a basic civil right in the absence of procreative potential.

Which, on the face of it, should cause one to conclude that limiting marriage licenses to couples with the potential to procreate does not violate the tests for invidious discrimination and thus does not violate civil rights. States should be free to expand their marriage statuses to any couples they wish as they wish, but other states should not be required to do so if they do not wish to.

An interesting side issue to this is polygamy. In that case, a federal judge recently ruled that it can't be illegal to co-habitate "as man and wife" with multiple partners. But the state is not required to recognize a second "marriage" in that situation. So the "we'll send you to jail if you do this" part of the anti-polygamy laws are unconstitutional, but the "the state doesn't recognize that relationship as a marriage" part isn't. Which does kinda seem relevant to the issue of gay marriage.

Of course, Kennedy may certainly look at it differently. He's a bit of a wild card.

Edited, Apr 29th 2015 3:00pm by gbaji
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#8 Apr 29 2015 at 4:53 PM Rating: Good
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The simple case for Kennedy voting in favor:
The American Bar Association Journal wrote:
Why this prediction? There have been three Supreme Court decisions in history expanding rights for gays and lesbians: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. The majority opinion in each was written by Justice Kennedy. He likely sees one of his most important legacies as being the expansion of rights for gays and lesbians. Liberals and conservatives alike expect that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to strike down these laws.

Of particular note is that Kennedy rejected the "marriage is for procreation" argument when it was attempted in United States v. Windsor (the case ending the Defense of Marriage Act).

You're correct about my too casual phrasing of the first question. I was just shooting the thread out and didn't bother to copy and paste the actual phrasing of the first question.
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#9 Apr 29 2015 at 5:30 PM Rating: Decent
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Jophiel wrote:
The simple case for Kennedy voting in favor:
The American Bar Association Journal wrote:
Why this prediction? There have been three Supreme Court decisions in history expanding rights for gays and lesbians: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. The majority opinion in each was written by Justice Kennedy. He likely sees one of his most important legacies as being the expansion of rights for gays and lesbians. Liberals and conservatives alike expect that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to strike down these laws.

Of particular note is that Kennedy rejected the "marriage is for procreation" argument when it was attempted in United States v. Windsor (the case ending the Defense of Marriage Act).


Yeah. Different context though. That was about the "recognize a legal contract elsewhere" element. Which may affect choice B, but not necessarily choice A. The federal government doesn't grant marriages itself. It can only choose to recognize them or not. As such, that case was more about the intent of the contract in the location it was formalized, and the intent of the government's tax exemption (or other things which recognize such contracts) within the context of such a contract. The argument was basically that since the federal government doesn't itself define marriage, but the states do, that the federal government should not decide that one state's marriage was less legally valid than another.

States actually issue marriage licenses and define the marriage contracts that result. The question is whether the constitution actually requires that those states must include same sex couples within their marriage licenses. That's an entirely different question IMO. Even choice B is different since the states have the right to make their own laws in this manner. Basically, Windsor was about the federal government not being empowered to tell the states whether their marriage laws were valid or not. The same logic would actually support a "no" result in this case since the plaintiff is basically asking the federal government to do exactly that which it said it should not do in Windsor (tell states and those living within those states what constitutes a valid marriage).


But again, Kennedy has shown a history of ruling in strange and baffling ways. So who knows?
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#10 Apr 29 2015 at 5:37 PM Rating: Decent
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Put more simply, Windsor (and I suspect the other cases as well, although I haven't read them personally), didn't require that the court rule that excluding gay couples from state marriage licensees violated some kind of fundamental civil right. This case does. It's a far cry from the federal government saying "well recognize whatever forms of marriage a state allows its citizens to enter into" to "we're going to require states to recognize a specific new type of marriage".

Depends on whether Kennedy is looking at this from a federal intrusion point of view, or just wants to be on board with a current social movement. And again, with him, there's no way to be sure. He's usually stopped short of federal government forcing things from on high though. I think some people forget that while we often think in terms of being "for" or "against" something, the court (in theory) isn't looking at the issue from that same perspective. Which leads to seemingly inconsistent rulings that aren't really if you stop and think about the differences.
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#11 Apr 29 2015 at 5:59 PM Rating: Excellent
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I like how you keep trying to set up a Kennedy ruling in favor as a "wild card", "strange" or "baffling". Smiley: laugh

Regardless of the overall ruling in Windsor, Kennedy pretty clearly expressed during the arguments that the "marriage is for procreation" argument didn't hold much weight with him. Not in a special context but simply that he didn't buy the statement that marriage is about procreation. He expressed similar misgivings this time around as well. Since that's the main point the case against SSM hinges on, there's good reason to expect a ruling in favor of SSM. I wouldn't bet my house on it or anything but I'll be fairly surprised if it goes against (neither A nor B).
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#12 Apr 29 2015 at 6:10 PM Rating: Good
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gbaji wrote:
The obvious point being that procreation is fundamental to marriage.
It isn't.
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#13 Apr 29 2015 at 6:11 PM Rating: Good
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I'm mostly ignorant, but what little I know is that Kennedy is decidedly unmoved by any plaintiff arguments that gay marriage is a bad idea and instead more interested in arguments as to why the Supreme Court should not be the means to implement this change.

Kennedy seems much more concerned with the the overall role the Supreme Court should play in any political debate than in this case in particular.

I went for the big money with A, I think he sees the outcome as both correct and socially inevitable, and that he is hesitant but has not yet been presented with a sufficient reason to allow the issue to be continually debated at the state level.

There's also some rumors of Roberts considering his legacy, which could lead to a flip.

Edited, Apr 29th 2015 7:37pm by Allegory
#14 Apr 29 2015 at 6:36 PM Rating: Excellent
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Jophiel wrote:
Regardless of the overall ruling in Windsor, Kennedy pretty clearly expressed during the arguments that the "marriage is for procreation" argument didn't hold much weight with him. Not in a special context but simply that he didn't buy the statement that marriage is about procreation.


Didn't he also make the point that has mainly been about property, and was about children only in the sense that children were property? Until recently, at least. I could be thinking of someone else.
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#15 Apr 29 2015 at 6:45 PM Rating: Excellent
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Allegory wrote:
There's also some rumors of Roberts considering his legacy, which could lead to a flip.

I very much doubt that we'll see another ACA-style ruling where Roberts was the dark horse vote and Kennedy stays with the conservative bloc. I could see a 6-3 ruling where Roberts votes with the majority and issues a narrow-as-possible ruling.
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#16 Apr 29 2015 at 6:46 PM Rating: Decent
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It's A. They made a mistake not just taking the obvious step in Windsor, and they aren't going to do that again and look foolish in 50 years. I'll double down that they release the decision on June 12, because they like to be cute on occasion.
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#17 Apr 29 2015 at 6:50 PM Rating: Good
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Jophiel wrote:
I could see a 6-3 ruling where Roberts votes with the majority and issues a narrow-as-possible ruling.

Couldn't be too narrow. There's not much stopping the 4 libs for going for a plurality decision at that point and letting time take care of the rest.
#18 Apr 29 2015 at 7:53 PM Rating: Decent
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Jophiel wrote:
Regardless of the overall ruling in Windsor, Kennedy pretty clearly expressed during the arguments that the "marriage is for procreation" argument didn't hold much weight with him.


Huh?

Maybe I'm missing something, but the word procreation doesn't appear in that document. Nor is there mention of children (at least not in the context of children from a marriage). He didn't clearly express any opinion on this at all.

He did, quite clearly, suggest skepticism at the idea of the federal government regulating marriage:

Kennedy wrote:
Well, but your statute applies also to States where the voters have decided it.


Kennedy wrote:
Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.


Kennedy wrote:
You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, et cetera, et cetera?


In all three cases, he's questioning whether the federal government has the authority to regulate marriage in the form of DOMA. It would be strange to make this argument in Windsor, and basically turn around and say the opposite now. Again, I'm not precluding the possibility that he's just operating on a "pro-SSM". position. But that's basically the only way a Justice could rule that a federal law regulating what state marriages were "valid" was unconstitutional in one case, but then argue that state laws themselves can't be constitutional unless they meet some really kinda arbitrary requirement that a handful of judges think is needed.

In fact, for those who have read the arguments in this case, he basically said just that:

Kennedy wrote:
This definition has been with us for millennia. And it it's very difficult for the Court to say, oh, well, we ÂÂ we know better.



Quote:
Not in a special context but simply that he didn't buy the statement that marriage is about procreation. He expressed similar misgivings this time around as well. Since that's the main point the case against SSM hinges on, there's good reason to expect a ruling in favor of SSM. I wouldn't bet my house on it or anything but I'll be fairly surprised if it goes against (neither A nor B).


You're correct that he expressed misgivings this time around, but I'm not sure if those outweigh his earlier questions regarding the question of whether we're really talking about a fundamental right in the first place. Also, he didn't really reject the argument that gay couples not being able to procreate wasn't relevant, but whether there was some dignity placed on a relationship by the mere act of being called "marriage" and that by denying that, it might therefore denigrate same sex couples. He got a pretty decent response to that question and didn't ask any further, so there's no real way to know if he bought the answer or just rejected it completely.

I'll point out again that while Kennedy does like to play the spoiler on social issues, he's still basically a conservative in the sense of how he views government power. In Windsor he was ruling *against* the federal government defining marriage, arguing that it was the states right to do that. To rule in favor of SSM in this case, he would be countering that position by basically saying that the federal government, this time in the form of a handful of judges, knows better than and has more authority than the states when it comes to marriage. Something he clearly seemed uncomfortable with in the arguments.

I'm just not sure if his "dignity" question is sufficient by itself to make the ruling. He'd need to find some fundamental right, and "feeling better about yourself if you quality for something" usually doesn't count as such. Again though, Kennedy.

Edited, Apr 29th 2015 6:56pm by gbaji
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#19 Apr 29 2015 at 8:37 PM Rating: Excellent
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It's A. They made a mistake not just taking the obvious step in Windsor, and they aren't going to do that again and look foolish in 50 years. I'll double down that they release the decision on June 12, because they like to be cute on occasion.


I'll take B, and June 19th.

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#20 Apr 30 2015 at 7:18 AM Rating: Excellent
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gbaji wrote:
Maybe I'm missing something, but the word procreation doesn't appear in that document.

My error. Either I misremembered or else I couldn't find it but either way I'm willing to concede the point.
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I'll point out again that while Kennedy does like to play the spoiler on social issues, he's still basically a conservative in the sense of how he views government power.

Except when he doesn't, then he's just acting strange or baffling or wackadoodle, eh?

Reading the ruling for Windsor reminded me of Scalia's portents of doom about Kennedy the next time this issue came up:
Justice Scalia wrote:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by " 'bare . . . desire to harm' " couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 22:

"DOMA's This state law's principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities."

Or try this passage, from ante, at 22-23:

"[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . ."

Or this, from ante, at 23--which does not even require alteration, except as to the invented number:

"And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

Similarly transposable passages--deliberately transposable, I think--abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the "personhood and dignity" which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that "personhood and dignity" in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

That Scalia should be as comfortable as you in Kennedy's conservatism, eh? Smiley: wink2
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#21 Apr 30 2015 at 7:55 AM Rating: Good
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gbaji wrote:
Maybe I'm missing something,
A pretty common situation you find yourself in.
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#23 Apr 30 2015 at 11:17 AM Rating: Excellent
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An article (interesting to me anyway) about Kennedy & Scalia. Or, if Washington Post makes your hair smoke with rage, you can read the NewsMax version saying the same general thing.
WP wrote:
“Their different approach to gay rights reflects their more fundamental disagreement about how to think about the liberties protected by the Constitution,” said Paul M. Smith, a Washington lawyer who was on the winning side in the Lawrence case.

Scalia believes the only freedoms that should be viewed as protected by the Constitution “are those that have been protected under American law throughout our history, defined at the most specific level,” Smith said. Otherwise, the people decide.

Kennedy, Smith said, “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”
Newsmax wrote:
Kennedy has defended his decisions, The Wall Street Journal reports, saying in 2013, "If the framers knew all the specifics of a just society, they would have written them down. They didn’t do that. They weren’t so cocksure. But they had some very strong ideas, and they used words that appeal over time to our sense of justice and our sense of freedom.

He also told the Journal that his own thoughts on the subject had changed over time.
"It’s a thinking process that you go through, and sometimes you’re surprised at the result you come to," he said.


Edit: when will Google filter realize that it's on the wrong side of history? Smiley: frown

Edited, Apr 30th 2015 2:07pm by Jophiel
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#24 Apr 30 2015 at 11:24 AM Rating: Good
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Jophiel wrote:
Edit: when will Google filter realize that it's on the wrong side of history? Smiley: frown
Edit: Wow, really, tinyurl is no good here?

Bitly?

Edited, Apr 30th 2015 1:26pm by lolgaxe
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#25 Apr 30 2015 at 11:26 AM Rating: Excellent
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I think it used to be used to hide those referral "mafia" style games links.
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#26 Apr 30 2015 at 11:31 AM Rating: Good
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Those were momentarily fun. Smiley: frown
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