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, you are the local poster boy for the problem with Christians, which is pretty well summed up in the first 3:45 minutes (the rest ain’t bad either):
This has been surprisingly useful. Timmy’s nasty, craven, weak little god is a perfect example of a human looking in the mirror, and saying,
“You are my god. All of your strengths and weaknesses are holy virtues. I will emulate, and proselytize.”
Timmy:
Your false equivalences aside, would you have the fortitude to tell a dear mother who just lost her gay son to AIDS that he deserved to die because of his actions?
Answer me that.
timmy,
I agree completely that you have a right to express your opinions. The First Amendment guarantees that right in this country.
However, others have an equal right to regard such opinions as the meaningless bleatings of an ignorant, bigoted, self-centered, self-righteous, homophobic, bull-headed, closed minded, intolerant, troll.
What you do NOT have the right to do is limit the rights of others to free expression, free association and the right to love whomever they wish.
You have already lost, sport. Rather than think you can muster the support to pass a Constitutional Amendment to take civil rights away from a segment of the population, you are part of an ever shrinking minority in this country. It’s over. Gay marriage will happen and you might as well get used to it.
timmy,
Not all churches and people of Christian faith share your beliefs. In fact, I was talking with a minister the other day who expressed joy that he may soon be able to perform marriages for gay people who have so long been denied the right to marry legally. In case you are wondering, he is a very straight older man who has been married to the same wonderful woman almost a half century.
The minister deplored bigotry in all its forms, including those who would commit the sin of using the Lord’s name in vain, attributing to God the hateful thoughts of a bigoted few. The minister pointed out that all too many self-proclaimed Christians were far removed from the teachings of Christ.
We discussed the story about casting the first stone, and the parable of the Good Samaritan.
Jesus never expressed any opinion on gay marriage. What he did say that is applicable to gay rights is pretty simple:
“Do unto others as you would have them do to you.”
And this, “Whatever you do to the least of my brothers and sisters, that you do to Me.”
I would love to hear your explanations to St. Peter regarding your homophobia and bigotry. Not to mention your pretensions of claiming to speak for the Deity.
Tony C.
We are all sinners. If you teach at a university and can’t understand that one should be accountable to their actions then you are worthless as an educator. I have a first amendment right to my opinion and as a citizen work hard to get it passed through our government just as much as you have the same right.
Timmy says: No bigotry in stating one reaps what he sows.
The bigotry is the implication in that statement that what they are doing is somehow fundamentally wrong and worthy of punishment; which is only your cherry-picked biblical religious hatred of those that disagree with your world view on morality.
As far as your threat to give students a zero for talking, I happen to teach at my university once in a while, and when I am the professor I have the authority to make such a rule, and enforce it. I do not because I am not a control freak or complete jerk, but if I did, that doesn’t mean the students can give somebody a zero for talking, it does not even mean I will tolerate students telling me about somebody talking.
That is your analogy, if God is the professor, then God has the power, and if God is all-knowing and all-powerful then you should shut up and let God do with sinners as He may please. Just like it is not the student’s job to police the classroom, it is not your job to coerce sinners, or punish them by denying them marriage, adoption, or anything else. You commit the sin of hubris by trying to stand in for God or implement God’s will. God can take care of himself. Or don’t you trust Him?
Also, it should be noted by the bigots that giving homosexuals couples the same rights heterosexual couples vis a vis marriage in no way obligates your particular church to marry homosexual couples in their facilities and traditions.
Just because the Church of X doesn’t approve of homosexual marriage, they are free to refuse their services. That is their Free Exercise and Free Association rights.
Just so, the Unitarians or other more humane and egalitarian religious organizations are free to offer their services instead as is their Free Exercise and Free Association rights or homosexuals are free to be married in a civil service.
You bigots will still be able to look down your noses all you like as homosexuals get married at the church down the street.
Timmeh,
You can believe that if you like, but the simple fact of the matters legal are as I have described. You seem to prefer fantasy over reality and that is your choice. There is nothing prohibiting private parties from bringing suit against the government on pending legislation when that legislation impacts a fundamental civil right. In this case, the rights being denied to homosexuals that you so blindly gloss over are their 1st Amendment rights of Free Exercise and Free Association and their 14th Amendment right of Equal Protection. You don’t know what you are talking about now any more than you did when you tried to assert that God’s Law is primate in American jurisprudence.
And there already is an age restriction on marriage, homosexual or otherwise. It’s known as the age of majority. Children, much like animals, cannot contract either (although there are some exceptions to this rule).
I also addressed the standing issue and the harm done although clearly you are incapable of understanding the explanation.
You don’t have to agree with me, Timmeh. You’re simply wrong as a factual matter. Whether you believe that or not is irrelevant.
Gene and Otteray
Courts can’t intervene on amendment. There job is to interpret not legislate which is the reason for Separation of Powers. Any ruling on their part could simply be ignored by the legislative branch. We know OBAMA won’t do anything because his justice department is famous for ignoring laws. BTW a person would have to prove that they are being denied a right.
We have age restrictions on the 2nd amendment so it makes perfect sense that age restriction on gay marriage is constitutional.
Gene,
What he does not seem to understand is that any amendment to the constitution cannot be in direct conflict with another section, without repealing the other one first.
timmy, let me give an example: An amendment to the effect that troops may be quartered in the private homes of citizens if the Secretary of the Army elected to do so, would not be allowable unless the Third Amendment were first repealed. It ain’t hard sport, but it does take at least a minimal amount of reasoning ability. Which seems to be in short supply these days.
As Gene has pointed out, Article 5, which you keep citing, does not mean what you seem to think it means. Article 5 only sets forth the mechanism for amending the Constitution. It does NOT say that new laws can be passed if they conflict with other sections. That is for the Courts to decide–as Gene explained in some detail. People with no legal background whatsoever trying to argue law with lawyers who have specialized in Constitutional law would be funny if it weren’t so pathetic.
If your proposed amendment – analogous to the FMA – were to stand any chance of being ratified without first facing a court challenge by interested parties? You’d better start your lil’ fantasy journey by seeking to repeal the 1st and 14th Amendments first.
Good luck with that.
BTW, to get said injunction? They would have to prove they would suffer irreparable harm, which in this instance is the deprivation of their 1st and 14th Amendment rights without a showing of valid state interest and/or a specific harm to others and their rights.
See, this is the same reason why your attempted legal argument failed above: there is no specific harm and you are trying to oppress people and deny their rights based solely on religious bigotry and a religious definition of marriage.
No, Timmeh, you could take my class but you would not pass it. “You can’t challenge in court what has not passed yet.” On the contrary. You can sue the government for injunctive and declaratory relief before they follow through on a legislative action. All the plaintiff must do is establish that it is likely that they will violate the law and also likely that they will be prosecuted for it to have standing. Article V describes how Constitutional amendments are made. It does not prohibit the courts from doing their job as described by the Constitution.
Gene H.
We can change any part of the constitution through article 5. The Courts have nothing to do with it. We did it with prohibition and slavery. I would not take your class. There is a reason that the Executive Branch and Judicial Branch were left out of Article 5 so stop trying to add them in. You can’t challenge in court what has not passed yet.
Timmeh,
You don’t seem to get the picture here.
The FMA wouldn’t get to be voted on and passed to the states for ratification without being challenged in court first.
You really don’t understand either the Constitution or how courts work.
As for a Government 101 course? I could teach one. As a subject matter expert, I could write one. I hardly need one let alone one from someone who is manifestly ignorant about the nature of law and the Constitution and so delusional that they think “God’s Law” is controlling in American jurisprudence.
Gene H.
If Congress passes an amendment with 2/3 vote and the states ratify it with 3/4 vote it becomes part of the constitution. The Courts can’t do anything about it. You need a government 101 class. Just read Article 5.
OS,
“Naughty bits” is a much more fun term!!
Gene,
I am glad that I wasn’t drinking when I read, “I never met an orgasm I didn’t like”!!!
What I find particularly amusing is that people from the Timmeh/Karen mindset seem to be obsessed with how consenting adults give one another an orgasm. As if orgasms are inherently evil if not done in a way that they approve of. I never met an orgasm I didn’t like.
Anonymously Yours,
To quote Shakespeare
Of course, in this context, “the lady” could apply to people of either gender and age.
timmy and Karen might want to give this study some deep thought, and begin to notice that embarrassing little tingle “down there” when around an attractive person of their same sex. Hey guys, this is the year 2013, so it will be OK to come to grips with your own conflicted feelings.
http://www.dailymail.co.uk/news/article-2126957/Homophobes-attracted-sex-study-finds.html