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Transparent ref gaming of Sup Ct on gay marriage

Transparent ref gaming of Sup Ct on gay marriage

The big shock in the Supreme Court’s Obamacare ruling was not that the law was upheld.  Most people thought there was a substantial chance Justice Kennedy would side with the four liberal Justices.

But almost no one thought that it would be Chief Justice John Roberts who would be the swing vote, and that he would uphold the law not based on the Commerce Clause, but upon Congress’ taxing power.

The leaks from the Supreme Court were that Roberts was bullied into changing his mind by the open and boisterous taunts by the Obama administration, Democrats and the media that the credibility of the Supreme Court would be irreparably damaged, and with it Robert’s legacy as Chief Justice, if the Court intervened in the political dispute over Obamacare.

It’s impossible to know if the leaks were accurate, but there is anecdotal evidence — from the structure of the opinions to the reaction in the dissent — that Roberts had flipped. 

Regardless of whether Roberts flipped or the reason, the one thing that was not in doubt was that Democrats deliberately tried to influence the Court through a publicity campaign centered on the supposed damage to the Court as an institution should it strike down Obamacare:

Even liberal WaPo columnist Ruth Marcus was shocked by Obama’s transparent ref gaming:

There was something rather unsettling in President Obama’s preemptive strike on the Supreme Court at Monday’s news conference …

Exactly the same attempt to exert political pressure on the Court has started from the second the Court announced on Friday that  it would hear the DOMA and California gay marriage cases.

Greg Sargent, who once accused me of “transparent ref gaming” for criticizing Chuck Todd (!) and David Gregory (!), is quite open about the strategy he is advocating and also is hearing from the pro-gay marriage legal team that Obama should issue a legal opinion supporting gay marriage (emphasis mine):

The Supreme Court’s decision to weigh in on two gay marriage cases has raised an important question: Will the Obama administration offer clarity on whether he thinks gay and lesbian Americans have a constitutional, as opposed to a moral, right to marry?

The Obama Justice Department is not saying whether it will address this question. But sources tell me the legal team representing the plaintiffs in the Proposition 8 case — Ted Olson, David Boise, and Ted Boutrous — plan to lobby the administration to publicly declare that the right to gay marriage is protected by the constitution, and to file a legal brief supporting their argument to that effect.

This would be a big, big move on the administration’s part. And Obama must do it, for two reasons. First, because it could help influence the Supreme Court to reach a broad conclusion on the constitutionality of gay marriage. Second, weighing in could help prepare public opinion to accept this right, too.

The argument is that the Supreme Court should raise its collective finger in the air, test the political and societal winds, and not end up on the “wrong side of history.”  That phrase is now embedded in almost every mainstream media news report on the topic of the Supreme Court and gay marriage. 

Here’s an example from ABC News (emphasis mine):

Will this newfound public opinion, largely driven by young people, women and Democrats, have an effect on the Supreme Court’s ultimate decision on the matter?

“I think (gay marriage is) just not a big deal for a lot of young people,” Elizabeth Wydra of the Constitutional Accountability Center says. “The justices are human beings so they’re not completely immune to public opinion. … I think the real question for them is going to be do they want to be on the wrong side of history?”

It’s one thing to argue that “history” (actually, politics)  is moving in a particular direction, which in the case of gay marriage is debatable considering that 31 states are against and only 9 in favor.  I think it is fair to say that the country is splitting along red and blue lines on the issue, and that split (as with many other issues) is the current sweep of history.

It’s quite another thing to try to game the Justices by asking them to decide the issue not based on their interpretation of the Constitution, but on the political implications for the Court of ruling one way or another.

That proponents of gay marriage feel the need to make the political and historical arguments as a means of influencing the Justices bespeaks a lack of confidence in their constitutional arguments.

Long ago and far away I predicted that Ted Olson and David Boies were too smart by half in their legal strategy, risking a Supreme Court ruling which would damage their political goal at a time when politics in many major states did seem to be moving their way.  Just imagine if a repeal of Prop. 8 were on the ballot in California in 2012, rather than in the Courts.

We’ll see at the end of June if I was right. 

In the meantime, expect the ref gaming to reach a fevered pitch right around the time of oral arguments and in the weeks to follow.  But don’t expect any of the liberal Justices to be the target, everyone knows they are beyond influence.


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legacyrepublican | December 11, 2012 at 9:04 am

Well, if Roberts were to legislate from the bench again, this time it might hurt the Obama POV by declaring the obvious, men and women are not built the same.

This ludicrous notion that marriage is about equality has to be nipped in the bud.

My lovely bride refuses, and I don’t blame her, to cede any of superiority to me in the name of equality.

The fact is that her needs and my needs are not the same. Without marriage and this vital institution, I am just a seed planter who has no use or purpose after he has done his job. Without marriage and its valuable function, my wife would have no one to help in the raising of her offspring.

Sacrificing traditional marriage for political gain degrades all of society allowing it to fall into ruin and anarchy.

Constitutional right to “marry”. Has anyone endeavored to define what “marry” might mean in this context? Constitutional rights are those rights that would exist in a state of nature (God-given or natural rights that exist in the absence of laws imposed by the state or sovereign or government. Thus they are not granted by the constitution or any government, but “recognized”.

“Marriage”, however, is the system that the state uses to identify “where the families are”, a method for unrelated adults to form a family tie. That’s why from time to time there have been different criteria, sometimes simultaneous, as to what constitutes “marriage” as recognized by the state. Common law living together for seven years and holding out as “family”, contract, or state identification of eligibility to marry )the license) coupled with a witnessed public declaration that “we are family” (the ceremony part).

In the absence of government, in a state of nature, individuals who wish to reside together in a symbiotic co-residence considering themselves to be “family” are free to do so. However “marriage” and “family” identification under government laws has to do with government action — certain inheritance rights, certain protections for dependents declared by the state, and in more modern times, rights such as to file a joint tax return or collect survivor disability benefits, or to not have to testify against the spouse in court, and similar. None of these are natural rights. They are government-granted benefits. Moreover, the government is not considered to be discriminating by (depending upon the benefit and from time to time) not granting some of these to certain blood relatives (children, siblings, grandparents) while granting them to spouses. The government also is not held to be denying natural rights by not granting marital benefits to people who declare multiple spouses, or to persons who are blood kin family (e.g. two adult siblings who reside together with arguably closer “family” ties than spouses).

IMO there’s been a misnomer. There is no “right to marry” in the sense that there is a right to demand certain state benefits that have been granted by the state to certain relationships for certain deliberate reasons in the public interest. That concept must be differentiated from “marry” in a different sense, the natural right to reside together in a private symbiotic relationship without government interference.

    Well there I think you have hit the real battle-front.
    Benefits. Money.
    If we conceded those, I think the Gay Marriage battle would mostly evaporate.
    And then I wouldn’t have to cringe.

SCOTUS decisions are about as meaningful as a Nobel Peace Prize.

Roberts does not strike me as the type to be bullied.

Barry Soetero is a chicago thug and bully, the US Constitution is a piece of toilet paper to him, as is the same case for most demonrats. And now it appears the same view is taken by the US “Supreme” Ct.

I used to think repubs were bad, after the Bush years, but hell Soetero makes George W Bush look like George Washington!

At this point I don’t trust either party, I do trust the tea party, when I was a democrat, I used to think repubs were bad, I now see the dimocrats are a heck of a lot massively worse!

As for the Supreme Ct, what a fking joke! for me, there were 2 US institutions I had a lot of faith in, the US “Supreme” Ct and the US military, I now see the Supreme ct as a joke, the only faith I have now is in our US military.

As for these supreme court justices, they are giving their opinions, they sure as hell are NOT “SUPREME” human beings, they are just humans, flawed humans like the rest of us. So the whole ObamaCare thing, seriously they think people are going sit by and get arrested for not buying health insurance or forcing employers to provids abortion pills (and I’m pro-choice) to their employees even if that is against their faith!

This country is headed toward massive civil unrest, can’t govern people without their consent forever, dims, Soetero, the Obot MSM can avoid the reality of the situation, whether it be economic, rationcare etc, they cannot avoid the consequences of avoiding that reality of bad policy, a shrinking economy, all thru their crappy policies!

That “genius” Al Franken is now outraged by a tax in ObamaCare, which he voted 4 and now says will cost jobs

riiight, ignorant fools, every single demonrat! and the supreme ct went along with it. Their job was to protect the liberties of Americans, now Roberts et al see themselves as rather ignorant people who are easily bullied. Maybe the dimocrats and Barry can call roberts etc racists to get the rulings they want.

the supreme ct/ roberts were bullied then, they will be bullied again.

the 4 “liberals” on the court obviously feel they are supreme beings, they will NOT give a damn what CA voters said/voted, the will overrule them. Forget giving the voters the respect. I support gay marriage, however if a state’s voters vote against it, I respect that. No indiv, gay or straight, is discriminated as an individual. This is about redefining marriage, if a state’s voters say one thing, and you as a resident don’t like it, then move!

MD approved gay marriage, NC has it banned. I respect the voters choice in each respective state.

What a sad state of affairs. I used to see the supreme court with respect and reverence, I see them as a JOKE now. I guess all these fools still want their DC cocktail party invitations, especially Kagan and Sotomayer, they look like they have massive egos.

Justice Roberts, thus the ‘Roberts’ Supreme Court, by virtue of his tie-breaking and very political decision on Obamacare, is judged by history as a political sellout of the US Constitution.

The only difference on this point between Liberals and Conservatives is Liberals wanted a constitutional sellout decision and conservatives didn’t.

Now that the ‘Roberts’ Supreme Court’s political sellout of the Constitution has been historically established, what else could history expect from the ‘Roberts’ Supreme Court except a follow up political sellout?

Good luck with this. If the court establishes gay marriage it will be the worst violation of the Constitution we have had to date (and we have had many). How can a religious person freely practice their religion if gay marriage is protected and sanctioned by the federal government? What will happen when a rabbi or priest refuses to marry a gay couple based on religion? The resolution to this issue is a Libertarian one. Marriage should not be a legal concept nor interfered with by the government. The rights gays seek should be gained via other means. I see a big mess and a huge hit to the constitution comming.

    Micha Elyi in reply to lightning. | December 12, 2012 at 2:34 am

    What will happen when a rabbi or priest refuses to marry a gay couple based on religion?

    Maybe the same thing that happens when priests already refuse to marry anyone based on religion?

    Some ferinstances: Despite existing law regarding non-discrimination for religion, a Catholic priest won’t marry two non-Catholics. For religious reasons, the priest may refuse to marry a non-Catholic to a Catholic and sometimes won’t even marry two Catholics. (I leave investigating the applicable provisions of Church canon law to the student.)

Marriage by definition is the joining of two people to where they become one flesh. This is a representation of Christ and his Church as stated in Genesis 2:24 For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.

This leads to a rhetorical question. Which man is the wife? Which woman is the husband?

1) Marriage is a bible word (We didn’t have Webster Dictionary then) at minimum a biblical doctrine and if the SCOTUS intervenes in this matter, they will in effect/affect be translating this fact, thus they have entered into the realm of religion to ‘clarify’ either the bible (doesn’t need clarification) or a political doctrine (the Constitution). No matter what, it will never change what God has said in his word, it won’t change one thing and the controversy will be ongoing.

2) God’s rainbow has been drug through the mud in the name of love/lust.
3) We have a president that will not uphold the law of the land (DOMA).

The end result is the complete degradation of any society involved in this and the family unit will disintegrate. Women have always been the backbone of the family unit and when women get to this stage a family oriented society is at the point of collapse.

Romans 1:24 Wherefore God gave them up in the lusts of their hearts unto uncleanness, that their bodies should be dishonored among themselves:
26 For this cause God gave them up unto vile passions: for their women changed the natural use into that which is against nature: 27 and likewise also the men, leaving the natural use of the woman, burned in their lust one toward another, men with men working unseemliness, and receiving in themselves that recompense of their error which was due. 28 And even as they refused to have God in [their] knowledge, God gave them up unto a reprobate mind, to do those things which are not fitting;

When leftists base their arguments on the notion that “history” moves in their direction, they conveniently ignore the relentless and aggressive efforts they make to push history in their direction. They’ll cite a shift of public opinion on an issue, especially among the young, as though it just happened naturally and now the law needs to catch up — with no mention of the persistent indoctrination by leftists in the schools and dominant media and popular culture. But if public opinion happens to go slightly the other way, then it must be the result of some dastardly reactionary plot.

History has a lot of bad sides to be avoided, where populism still rules for the worse. The Muslim Brotherhood is a recent example, resulting in an Islamic dictator, apparently hostile to the U.S. Our erudite media flowered the Arab Spring path for dictator Morsi.

I’m worried though, that Roberts is now compromised. Perhaps he has been “turned” to the dark side, where the force is great. Roberts may now try to confirm his Obamacare sellout. He set his own precedent (bowing to the King), and may proceed down that path to hell, taking us with him.

The court, like everything Obama touches, may be broken. The liberals on the court may prefer to have laws properly parsed, but upholding the founders’ intent, and the individual rights, seems second to the supreme right of the state.

I’m muddling through “The Law”, by Bastiat.

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!

If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.

Any review of the SCOTUS decisions will show that these decisions were influenced by the prevailing political/social views prevalent at the time of the decision. Just proves the squeaky wheel gets the grease.

I thought Marriage was reserved as being a union between a Man and a Woman, under the eyes of God.
Anything other than that is something else, and should not be confused with “Marriage”
So, they start right out with deeply flawed terminology…
And then they try to gain legal standing, but they don’t have the Marriage performed under the eyes of God between a Man and a Woman to begin with…

Call it something else.

This point will not solve any problems, or fix anything.

I see two entirely different sorts of a union here.
One has been pretty much addressed, the other not.
I think that other one should go build it’s own wagon rather than trying to attach itself to something it cannot pretend to be.
Oh well. Just my opinion, and I would probably be far ahead to just stay away from this one.

I am of the opinion that one of two things occurred, either Roberts or his family were threatened with violence, or the Obama administration has dirt on Roberts such that he would rather flip his position on this than have that information come to light. Nothing else explains his abrupt flip to a position that is inconsistent with everything he has ever stood for up to now.

I think Chief roberts took a look at the Federal Jugdge being murdered by a whack job, and decided that discretion is the better part of valor. Let Cong clean up their own mess.
Just like with this fiscal cliff thing, it is taxation without representation. the entire issue should have been debated in Both houses with names to each part of the vote.
This issue is not “deus ex maCHINA”like a greek tragedy. The Congress can pass a bill wherein the the entire fiscal cliff bill is scotched and will be taken up next year with cuts.

IMHO, obama threatened to unseal Roberts’ children’s adoption papers as par usual if he voted against obamacare. This is how this POS works in just about every election he runs. He even tried it with McCain by touting McCain wasn’t an American citizen because he was born on the navy base in Panama. It is more dangerous than we realize to have most of the media and half the judiciary on obama;s side. All are communists who want to overthrow our country.

Marriage is not a right and is not mentioned in the Constitution in any way. Marriage is a custom (mostly religious) for forming a family unit to raise children. And the custom has always been down through the ages that marriage is between one man and one woman because they are the only unit that can conceive children. However, jettisioning the family unit is the goal of these people. Sometimes I think the real issue in this hooha is to force everybody else to accept gayness totally as normal.

BannedbytheGuardian | December 11, 2012 at 5:28 pm

Yeah well homo marriage ain ‘t coming to Tunisia Egypt Turkey Saidi Bahrain Qatar Abu Dabai Dubai Yemrn Gaza Syria Libya Nigeria Mali Somalia Afganistan Pakistan any tIme soon.

Be warned that their next step will be to lump oponents with that lot.

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