The U.S. Supreme CourtToday, the Supreme Court will take up the Defense Of Marriage Act (DOMA), the law signed by Bill Clinton that denied benefits and equal treatment to same-sex couples. This follows yesterday’s interesting, and at times heated, debate over Proposition 8 in the Hollingsworth case. I will be on MSNBC today discussing the case with NPR’s Here and Now at 12 and then Martin Bashir at 4 p.m.
While some of us have been cautioning people for weeks that this Court was more likely to look for a way to avoid a major decision and could avoid a decision entirely through standing, many were disappointed with the tenor of the questions yesterday. Members like Chief Justice John Roberts seemed openly peeved by people pushing him toward a decision on equality for homosexuals. As expected, Associate Justice Antonin Scalia was the most provocative with questions like “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”
However, even Justice Anthony Kennedy, viewed as the key swing voter, expressed uncertainly about whether the trend toward equality would result in a magnificent end or go over “the cliff.” It was clear that the justices viewed this as a “new” question and had reservations about deciding it for the nation. Indeed, they looked like so many elderly drivers in Florida driving slowly on the highway with their turn signal on, looking desperately for an off-ramp.
That off-ramp could be standing since this case has significant problems on whether the proponents of the law have sufficient injury to demand relief before the Court. If dismissed on standing, that would also mean that the Ninth Circuit also lacked standing. That would leave the district court decision and same sex marriage would be restored in California. However, there would be no sweeping new protection secured in the case.
Another off-ramp was hinted at by Kennedy who openly wondering if the case was wrongly accepted. The Court can simply dismiss a case as premature and mistakingly granted. Many leaders on the Court like Earl Warren wanted to speak with a strong or a single voice on major issues. Absent such a consensus, some might prefer to toss the case rather than produce a fractured decision. It is clear that some justices remain undecided on the fundamental question, though most of us would not view this as a “new” question. The right to marry is not a new question. Nor is equality. Indeed, the gay rights movement is hardly new. Yet, this is an incrementalist Court that historically tries to avoid getting in front of the nation on divisive questions.
That brings us to DOMA and today’s argument. After the indecision expressed yesterday, it seems hard to believe that the justices would express certainty on the fundamental right today in the DOMA context. Many had hoped that the Court would simply find the law unconstitutional as a violation of equal protection and extend heightened scrutiny to sexual orientation. When Clinton signed this law, many condemned it as open discrimination. Indeed, it is frustrating for civil libertarians to see Clinton and Senators like Claire McCaskill come out expressing their rather belated conclusion that same-sex couples deserve equal treatment in marriage. When such decision requires more courage, they were no where to be found and, in Clinton’s case, openly worked against gay rights.
With even Kennedy expressing uncertainly yesterday, a ruling recognizing equality seems a bit more difficult today. Yet, a ruling upholding DOMA would be equally sweeping. This case also has a number of off-ramps. Standing in this case for the members of Congress is highly questionable. I represented Democratic and Republican members challenging the Libyan war and we were dismissed on standing grounds. That could be the result here, though it would be a bitter end if both landmark cases end in procedural dismissals.
Another intermediate resolution would be for the Court to strike down DOMA not only equality grounds but federalism grounds — avoiding the creation of a new fundamental protection for gays and lesbians. The Court could hold that Congress was interfering with a state question (the definition of marriage) by denying benefits to all same-sex couples (including those from states recognizing same-sex marriage). In so holding, the Court would not be holding that there is an equal protection for homosexuals but rather that this is a matter left to the states. That would still be a victory for gay rights but not the one most deserved from this case.
Maybe this is a class assignment for “Timmy.” It wouldn’t be the first time on this blog.
Otteray Scribe
I stated only facts of Article 5. You obviously do not know it and I will put myself up against you any day in the world of politics.
anonymous
I have shown no hatred to anyone. I simply believe that there are consequences to our actions and that it is wrong to try and avoid them.
Timmy,
If there is a god, you may have a rude “awakening” at the pearly gates. I’m guessing that the hateful, vengeful, spiteful, judgmental and/or cruel might be redirected to that other special place.
By the way, I hear that fusion centers employ folks like you.
Gene,
Have you noticed that Timmy’s lack of knowledge of the law is exceeded only by his lack of understanding of politics. I guess that’s what happens when your entire knowledge of the world is obtained from some hellfire and brimstone preacher and Wikipedia.
He really needs to get out more.
bettykath
My point on HIV was easy for most people to understand but in your case I guess not. I pointed out that if you are gay and get HIV through intercourse with the same sex then that is a consequence of your action and therefore death should be the result.
Now, in cases of innocence like an infant or unknowing blood transfusion or when one heterosexual partner doesn’t reveal to the other their having HIV are exceptions and I pray that a cure would be found for them.
If a cure is ever found I would not make it available for those who are in a homosexual relationship and get it that way just like if you are a smoker and you get lung cancer I would not be in favor of curing them if a cure was found. We as a human species have to learn to reap what we sow.
Take people who drop out of school and then end up on welfare. We are stupid for giving it to them.
Gene H.
If the congress passes an amendment and the states ratify it (2/3 and 3/4) then the Supreme Court has to uphold it. They can’t declare and amendment unconstitutional. I hope this lesson of Article 5 has helped you understand better. For to long the Republicans have been been beaten up by progressives. Well, now they are fighting back. The abortion change in North Dakota is just one example. It is constitutional just like restricting gun ownership through age.
bk
its his god screwing up
Timmy, you said
“BTW if you are gay and get aids then you should die with it.”
So what about the many monogamous straight women who have contracted HIV? What is your rationale for their illness and subsequent death? And the infants who are born with HIV?
Gene, I’ll try the maple syrup. I may have to go back to get a squash so I can try it this week. Maple syrup is also a great sweetener for pecan pie.
Sorry for the repeats, but gotta release.
The Timmys of the world need to also acknowledge that THEIR god created all these sexualities/acts and that maybe HE did so for a reason, like providing the BREEDERs with a substantive portion of the population
–that can set the standard and demonstrate “purposeful” mating AND purposeful breeding,
–that may be able to pursue intellectual and creative contributions to society without the distraction of childrearing, or
–that are available to pick up the breeders’ slack at raising their own offspring, either through blended families, through adoption of unwanted, neglected, or abandoned children, or through the simple act of caring for a family member’s child.
I suspect that there is some element of exaggeration in these next examples, but wasn’t it lesbians that initially stepped up to take care of the gay men ill with aids, isn’t the social work field loaded with lesbians, and don’t gay men end up taking care of a lot of other people’s children? And these men and women are NOT providing this care of other people because their religion mandates it, I strongly suspect.
And, you know, this isn’t just a privacy issue, its a gender issue. You can’t ever get away from the fundamental and necessary FACT that both cases are premised on “homosexuality”, which our society differentiates from heterosexuality based on the GENDER of the PARTIES in a SEXUAL ACT OR DESIRE.
I mean really, let’s just assume that I am a woman, then lets ask ourselves why I can’t do the things a guy might do. Why is a guy only allowed to penetrate a mutually consenting female, or perform cunnilingus on a mutual consenting female?
See what I mean–no matter what pretextual language and circular logic has been presented in the briefs or at the oral arguments for these two cases, the underlying analysis is really just a question of what sexual acts the government is going to be allowed to condone. Is this really what the Justices want to be doing, engaging in this dialogue, because its going to be exceptionally difficult, if not impossible to hide the fact that that’s what the analysis really is: are we going to “allow” a female to do to a female what we currently allow a male to do (and, are we going to allow a male to do to a male what we currently allow a female to do).
And, to Timmy only, really, I hope that you have never had any version of sex with a woman other than straight up vaginal penetration–no fondling, no kissing, never got a blow job…because that’s what the underlying analysis is all about here, and which is why I keep saying its not under the government’s authority to regulate. MUCH LESS YOUR’S OR YOUR CHURCH’S
Do you have any idea about the sexual behavior of animals–ALL animals, you know, the ones that YOUR god created. YOUR god apparently, according to YOUR rhetoric created a phenomenal variety of sexual acts, sexual rituals, sexual pairings, sexual “states” (one organism containing one type of sex organ v. the ability to contribute all genetic materials on its own), and various “linkages” between sexual activity and childrearing (some gene contributors stick around to rear the young, A LOT DO NOT). And YOUR god, according to YOU, created ALL THAT. What, did HE make a mistake? Did HE get carried away with himself? Was he only JOKING?
Maybe one day you will realize that your CHURCH has to keep you feeling as if you are part of an elite group, a member of a “chosen” few, to feed your innate need for approval and social companionship. And they do this in order to keep you feeling satiated and “giving”.
Timmy said: “BTW wait until the 2014 elections and see what happens. The NRA along with Tea Party and Christians, I would not be surprised if the Senate is taken back by the Republicans.”
*****
Timmy,
Is your God a Republican? A Tea Partier? A member of the NRA? Does your God hate Democrats and progressives? Too bad your God didn’t help the Republican party win the Presidency and Senate in 2012. Was he away on vacation last November?
To Timmy and Karen–if you want to inject religiosity into politics and government, then have your church start paying its taxes. Talk about special rights…
20 years or so ago, when the catholic priest child abuse scandal was exposed in Boston, I read that the catholic church was a 3 TRILLION dollar a year industry–back then! Today, various researchers state that the church is one of the top global industries. A couple of months ago, I read that Wells Fargo is “backing” the church’s debt financing–which by the way, is in the form of MUNICIPAL debt. What a break!
So, Timmy, you keep spewing the company mantra. In the meantime, the church, whatever denomination, will certainly keep shoving both of its hands so far into your pants pockets that you will no doubt feel a little bit of shame, confusion, and guilt about the pleasure that you felt from having such forceful thrusting so close to “home”–backdoor or front.
I think Thurgood Marshall said it well…. Basically this premis ….. I’ll do what I think it right and let the law catch up…..
However… With the current sct being more judicially active…. Because of being nothing more than paid lobbyist…. You’ll have a different outcome….
Timmy wrote:
BTW if you are gay and get aids then you should die with it.
~+~
Be careful what you wish for. Tyrrany has a way of biting you back.
You may return to your fine examples of a good christian now.
Timmy says: “lottakatz BTW if you are gay and get aids then you should die with it. It is people like you that are bankrupting our country because you want taxpayers to pay for cures from immoral behavior.”
——————-
That’s some sad sh*t right there bro. I will die as will you and there are whole new generations that will wonder how such hatred (and fear, and religious bigotry) was allowed to influence policy for so long. I believe that. I’m OK with that. Even if I don’t see the changes I would like to see (and there are many of them) in my lifetime most of them will come. Humanity is, for the most part, is a story of small steps. You want to stumble around in the darkness until you die, I’d rather stumble around in the light.
Timmy
The chance of passing a constitutional amendment banning gay marriage is ZERO for all the reasons aforementioned here. Not to mention it would violate teh 9th amendment.
Our nation has already learned its lesson on prohibition type of amendments
I missed that memo, raff. I was too busy studying the Constitution and actual jurisprudence. 😉