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Supreme Court will hear DOMA and California gay marriage cases

Supreme Court will hear DOMA and California gay marriage cases

Just breaking, via The Hill:

The Supreme Court announced Friday that it will hear a challenge to the Defense of Marriage Act (DOMA) — the federal law that defines marriage as a union between a man and a woman. The court also agreed to hear a lawsuit challenging California’s statewide ban on same-sex marriage.

Supporters of same-sex marriage are optimistic about the chances the court will strike down DOMA, making all marriages equal in the eyes of federal law. It would be a historic ruling, and one of the most significant civil-rights decisions in the court’s history.

The challenge to California’s Proposition 8 goes a step further, providing the court with an opening to declare that there is a constitutional right to same-sex marriage. The justices will consider whether the 14th Amendment bars California from enforcing a law that prevents same-sex couples from marrying.

I haven’t written specifically about the DOMA challenge, except as relates to the Justice Department’s about-face and refusal to defend DOMA, and the related threats by DOMA opponents to disrupt the client relationships of the private law firm hired by the House of Representatives to defend DOMA in place of DOJ.  That resulted in the law firm, King & Spalding, withdrawing.

I have written a lot about the California case, in which the 9th Circuit affirmed a district court decision overturning Prop. 8. The 9th Circuit did so on very narrow grounds, holding that because for a period of time gay marriage was legal in in California (based on a California Supreme Court decision), voters could not amend the Constitution to revert to the status prior to the California Supreme Court decision.

We now may find out what Elena Kagan meant when she said there is no constitutional right to same-sex marry (and whether I am a rube):

Update:  The Orders indicate the Court also will consider procedural issues which could kill review of the substance, namely whether certain parties (in each case, the party on the side opposing gay marriage and defending DOMA) even have standing (i.e., a legal right) to do so.  While it’s hard to believe the Court would accept the cases only to never reach the merits, that could happen.  More likely, agreement to hear those issues might have been part of the Court’s internal deliberations on whether to take the cases as all:

And, the lack of standing in California case could have an unexpected result, depriving the federal courts (including the court which overturned Prop. 8) of jurisdiction for lack of an actual case or controversy (a constitutional requirement for federal court jurisdiction), as explained by Orin Kerr:

So the court may avoid ruling on the constitutionality of Prop 8 by saying that the case should not have been allowed to proceed in the first place — which I gather would mean that the lower court decisions are off the books, as there was no jurisdiction in the cases that would allow them to be decided.

See this student law review Note for more about this.  The standing issue came about because none of the elected officials in California would represenst the voters, so privatge groups stepped in to defend the law.  How ironic would it be if the Supreme Court effectively reinstated Prop. 8 by saying that it never should have been federal court because the public officials vested with standing (who opposed Prop. 8) refused to act?


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I don’t understand why people cannot see that talking about “Gay Marriage” is the logical equivalent of talking about “Square circles”. NO ONE IS DENYING GAY PEOPLE THE RIGHT TO MARRY! They simply choose not to exercise that right. Marriage is DEFINED as between a man and a woman. Should they receive the same legal protections as married couples? Obviously they should receive the same legal protections in a civil union as in a marriage, but to argue that somehow a civil union is the same as a marriage is ludicrous. The proponents of “Gay Marriage” want to gain legitimacy for their lifestyle, not legal protection. Again, No one is denying people the right to marry. It all depends on what the definition of marriage is. Is. is. is. is. (Clinton anyone?)

Predictions? Anyone?

Taking DOMA and Prop 8 points to a states right outcome to my tea-reading eyes. Listening to the Ed Morrissey show where one person predicted John Roberts upholds DOMA as a tax. 😀

    MaggotAtBroadAndWall in reply to Mary Sue. | December 7, 2012 at 4:22 pm

    I remember a Scalia interview recently where he said gay marriage is an easy issue for SCOTUS to decide. He did not tip his hand, but the way he said it made me think he considers it a “states rights” issue.

    That’s just how I interpreted his response. I could be wrong and even if I’m right about how he will vote he may be an outlier compared to the rest of the court.

    raven in reply to Mary Sue. | December 7, 2012 at 5:01 pm

    “…where one person predicted John Roberts upholds DOMA as a tax.”

    Now that’s funny.

      Unfortunately it may also be entirely true. The power to lay and collect taxes in order to sponsor certain “behavior” has become common place, and in this instance, it will come back to bite the Progressives squarely in the ass.

      SCOTUS has repeatedly held the Federal Government has the power to tax certain behaviors that are disfavored. Homosexual marriage is disfavored by the Congress, and thus may be discouraged by unfavorable tax treatment, in this case, denial of marital tax deductions and benefits. Finding otherwise would require an explanation of exactly WHY homosexual marriage is different, and in the process open a whole group of taxes and fees put into place by the Congress to legal challenge on whatever grounds that they decide on.

    I gave up making SCOTUS predictions after ObamaCare’s individual mandate was ruled constitutional by declaring it a tax.

Funny, how degenerates have all these newly-discovered “rights,” imposed by courts and other tyrants, while normal citizens are seeing their rights trampled and stolen by hte collective.

This cannot continue. Either this immoral trash will be defeated peacefully, or there will be some kind of major pushback. In this country, a relatively small percentage is truly in favor of normalizing degenerate behavior (as opposed to those tricked into “supporting” behavior they consider evil, when it’s dressed up as “civil rights” or “equality”), while roughly half are against it. In short, no society will survive where a substantial portion of the population is coerced into surrendering its freedom and morals.

Bottom line: the United States of America may very well be finished soon, symbolically and politically. That doesn’t mean that individual states can’t become bastions of liberty. It won’t be the same, but I’d rather have liberty than a leftist-caricature America.

Midwest Rhino | December 7, 2012 at 4:28 pm

I don’t understand what equal rights for a “gay union” has to do with some constitutional right to change the meaning of words in the English language. It seems too Orwellian.

And since women are not barefoot and pregnant, but equal, what is the purpose of tax subsidy for ANY unions? If it is for the children, then subsidize the children and their care, not 60 year old newlyweds that want to milk the spouse’s retirement benefits. If one spouse cares for the child most, give him compensation within the union or its divorce.

I hope the issue is pushed back onto the states. Each state should bear the brunt of their own bad decisions.

    That would suggest a scientific assessment of the issue. As we know, primary assessment is made through emotional responses. The most ardent proponents of “science” often fail to distinguish between philosophy and science. Acknowledgement of concepts such as evolutionary fitness are selective and principally exploited as props to marginalize competing interests.

    Anyway, science offers, and its domain, the natural order, enforces inconvenient truths which are not palatable to individuals who engage in dysfunctional behaviors.

    Besides, it is not a minority interest which is of primary concern. Behaviors constituting evolutionary dysfunction can be tolerated when constrained to a minority of the population. The real issue is men and women who are ostensibly heterosexual, who exploit this conflict to defend and normalize their own dysfunctional behaviors. The most egregious of which is the elective abortion of sentient human life when it is literally incapable of defending its own life. This is both a human rights violation and is illegal under our law, which demands equal protection of citizens, including human life from Creation (as defined in the establishment document, The Declaration of Independence).

    There is an inherent paradox which is worth noting. The establishment of civilization enables and motivates individuals to engage in dysfunctional behaviors which were initially proscribed in order to establish the civilization. The normalization of dysfunctional behaviors engenders progressive corruption which becomes conclusive corruption. Then the civilization either disintegrates from internal pressures or is conquered by another people with a superior grasp of reality. Once the original order is marginalized or eviscerated, then the cycle will begin anew.

There is a fundamental misconception in your Prop 8 post. The California Supreme Court ruling did NOT “give rise to Prop 8.”

Proposition 8, a state constitutional amendment, was qualified for the ballot some months prior to the state court ruling, and was intended to strengthen the similar existing state law so that a state court could not find such a right in the state constitution.

The California Supreme Court, however, chose to “find” the right before Prop 8 could be voted on, and it is this preemption by the court that the 9th Circuit calls an “existing right”.

Prop 8 was already awaiting a vote, so in no way was it crafted to remove an existing right — the “right” was crafted to remove a existing ballot question.

Note: Subsequent to the CA Supreme Court ruling, a motion to remove Prop 8 from the ballot failed, 6-1, so the state court clearly did not buy the “existing rights” argument.

BTW, I voted against Prop 8 and support gay marriage, but I just dislike this kind of dishonest legal BS.

My guess is that this fails on the grounds that the SCOTUS says “it’s a political issue. Take it up in Congress.”

As for the state constitutional bans, I think also the SCOTUS will say “we have no authority to tell states that they must or must not approve of any specific type of marriage so long as it does not tread on the previously created ‘strict scrutiny’ categories. That is a decision reserved to the states under the category of a general police power and providing for the morals of the people.”

California already has civil unions for homosexual couples, and these civil unions by statute have the same rights and privileges as marriages. So, the Supreme Court is bothering to address the question of whether it’s a “civil right” to use a different word?

The whole thing is luridly stupid. I could see taking up the issue in a state that bans gay marriages entirely, but not in one that has them under another title. That’s a distinction without a difference.

The essence of judicial restraint is that the Courts should act in as narrow a fashion as possible to decide the case before them. If they can find a lack of standing, that is the ideal outcome from a viewpoint of restraint. There is no basis to intrude upon the statutes, either to interpret or void them.

Our worst war may have been made inevitable due to a lack of judicial restraint. In Dred Scott v Sandford, the Court ruled against Scott straight off on the basis that he lacked standing. Had they stopped there, it was bad news for Scott, but the country may have had a few more years to seek a political solution to the impending crisis.

But Taney’s Court went further, without any reason to do so, and effectively voided the entire Missouri Compromise. The time it hoped to buy was lost to the strike of a gavel which needn’t have even considered the issue.

My recollection is that these days fewer straight couples are getting married, and that after the first rush, many homosexual couples skip marriage.

The gay community seems to be interested in not just acceptance but approval. Once they get approval they can go after Christians in general and Catholics in particular who find moral objections to homosexual activity. This pattern has happened in Canada. Once same-sex marriage is approved by being legal then the teachings of the Church become hate speech.

I predict the Court will find a way, as they always do, to chip away at existing laws, granting the gay sex people a few more rights, but not nearly enough….

….”paving the way for more Court challenges in the near future”.

Lawyers: Our work is never done. Ever.

Thankfully for Canada, they got wise to the whole “hate speech” fiasco, and rescinded their hate speech laws.

Jeepers, I wonder what Chief Justice Robert’s ovaries will tell him about Equality and, ya know, Fairness on this Ish-Shoe.(-:

A world turned upside ****ing down and inside ****ing out.