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.
timmy’s understanding of what the law really is, and how political issues are created, is really pathetic. He is not alone in that of course. Delusions abound in every part of the political spectrum. Reality testing and scholarship is hard. Scholarship requires actual study to understand things beyond the level of a simple Google search and what fundamentalist Christian web sites say.
Saying gays and people who get HIV/AIDS deserve to die is “not hateful” would be laughable if it did not make people like him dangerous to society in general.
http://pinterest.com/pin/160863017912097298/
timmy’s rants remind me of the outrage generated a few days ago because a high school biology teacher used the word “vagina” while teaching a unit on biological reproduction. Can’t have biology teachers using the actual correct anatomical terms for the naughty bits. BTW, someone familiar with that area of Idaho tells me the rate of teen pregnancy is through the roof. Why are we not surprised?
To All the Poster,
Me thinks that Timmy is the new James Baker….. He’s in the closet and really a big sucker…. But has to be macho man here…. Quoting how deviant homosexual behavior is….
I wonder if Timmy would be upset if he found out his Jesus might have been married and swang both ways…… Oh my the contempt he would have for him…. But then again, if Timmy swings both ways that means he’s not a full time homosexual….
Timmy,
You’re against the legalization of same-sex marriage…right? Can you answer the questions that I asked you in my previous comment?
Timmeh,
Too bad so sad, you don’t know what you’re talking about. Laws and amendments only differ in approval process and how they are integrated into law, but they are both the result of legislative actions.
Google “injunctive and declaratory relief” since you obviously didn’t attend law school.
There is no law prohibiting a private party from bring such a suit against Congress.
Elaine M
I am saying that if two men have intercourse and they get HIV then that is their problem and no one else’s. Tax payers should not be paying for research to cure that.
OS,
I wonder if Timmeh would be so gung-ho to deprive others of the civil rights and equal rights if there was a proposed amendment to ban the practice of fundamentalist Christianity.
Gene H.
Too bad so sad! As long as congress and the states follow Article 5, then the courts can not do anything about it. Laws and amendments are different.
Timmy,
Am I to assume that you believe that homosexuals who love each other and are committed to each other in monogamous relationships and would like the right to be legally married should be punished? What do you think they have done wrong? What evil have they sown?
Again, Timmeh, you seem to be under the impression that “God’s Law” is controlling in our jurisprudence.
It isn’t.
Timmeh,
You seem to be under the illusion that your proposed Amendment would survive the ratification process without pre-emptive legal challenge. Courts can offer injunctive relief as a remedy before an action takes place. When such remedy is sought, the parties involved are enjoined from pursing whatever action is being challenged until either the court upholds their action as legal or issues a final injunction against it. Happens every day.
Still using all the muscles but the important one I see.
Elaine M.
Everyone believes me to be full of hatred and bigotry but all I am saying is that one should be held accountable to their actions. If you smoke and develop lung cancer then suffer the consequences. That is not hatred.
To all Liberal and Progressive bloggers:
If I tell a student that if they talk during the exam they will be given a 0. Then one talks so I give them a 0. How is that hatred and bigotry? All of you want to ignore one’s behavior and help them. That is exactly why our country is faltering. Here is an example: Someone who knows they do not have money to buy a house is allowed to anyway under rules put in place by that “Gay” congressman Barney Frank and then when they can’t pay everyone feels sorry for them. Well, I don’t. If you knowingly do something wrong-and yes borrowing what you can’t pay back is wrong- then suffer the consequences. Be Accountable!
Timmy,
“Since when is reaping what you sow Hatred and Bigotry?”
*****
I don’t understand what you mean by that question. Maybe you should reword it.
Elaine M.
Since when is reaping what you sow Hatred and Bigotry?
Well I saw this flap when the number of times the word “Timmy” came up on a search was something like 181, so I went all the way back to the beginning to see what the flap was about. What do I find? Timmy is clued in to God and is merely telling the rest of us what GOD wants to do with the American legal and judicial and legislative processes. So then Timmy gets attacked because he was representing God, and this presents a sort of classical scene where God’s emissary is not being respected enough.
So I get it. But then I noticed that Timmy was telling people that under certain circumstances, they should die. Hmmm… a bit presumptuous huh? But you never can tell with Godly folks — you never can tell.
Live long and prosper, Timmy. I’ll never date you, and if I’m lucky, I’ll never even MEET you, but I wish you well.
What should one expect to reap when one sows hatred and bigotry?
Discrimination is good for this country?
Otteray Scribe
Southern Poverty Law Center: I don’t care what they think or for that matter what you think. Since when are you and the Southern Poverty Law Center experts on hate speech. Just because you don;t agree with my opinion you deem it hatred.
There is nothing wrong with one REAPING what the SOW!! That is not hatred but truth which good medicine for this country we call America.
timmy, after you have served a term as Chair of the Legislative Committee for your professional association, get back to me on politics.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
IF AN AMENDMENT IS ADDED, THEN THE SUPREME COURT CAN’T OVERTURN BUT MUST USE IT AS PART OF THEIR DECISIONS.
timmy sez: “I have shown no hatred to anyone.”
Now you have descended into either a bald-faced lie, or you are delusional. Which one is it, are you a liar or delusional?
The Southern Poverty Law Center has determined that the kind of speech you have been making on this blog is “hate speech.” I find it curious that you feel free making and defending hate speech, you are denying it at the same time. What happened to the Golden Rule, sparky? Leviticus is in the Old Testament.