View Poll Results: How will SCOTUS rule?

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  • States can ban SSM and not recognize them from other states

    2 3.33%
  • States can ban SSM but have to recognize them from other states

    8 13.33%
  • States cannot ban SSM but do not have to recognize them from other states

    1 1.67%
  • States cannot ban SSM and have to recognize them from other states

    45 75.00%
  • No ruling, lack of standing

    1 1.67%
  • Something else

    3 5.00%
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Thread: Crystal Ball Time: SCOTUS and SSM

  1. #21
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.
    Sexual orientation is a protected class in some states.

    At the federal level, the EEOC has used 'gender discrimination' in legal challenges to support rights for homosexuals successfully in most cases.
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Lursa View Post
    Sexual orientation is a protected class in some states.

    At the federal level, the EEOC has used 'gender discrimination' in legal challenges to support rights for homosexuals successfully in most cases.
    That is correct, though neither are particularly relevant to the cases SCOTUS is hearing on SSM.
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    That is correct, though neither are particularly relevant to the cases SCOTUS is hearing on SSM.
    Yes it is. The issue can also recognize that in the area of contracts (state-sponsored marriage licenses), it's gender discrimination. One gender is discriminated against.

    I dont know if that is one that SCOTUS will use but it has been proposed and is similar to the way that the EEOC has successfully met challenges.
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    Quote Originally Posted by applejuicefool View Post
    A murderer putting a bullet through someone's brain is a medical procedure too.

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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Lursa View Post
    Yes it is. The issue can also recognize that in the area of contracts (state-sponsored marriage licenses), it's gender discrimination. One gender is discriminated against.

    I dont know if that is one that SCOTUS will use but it has been proposed and is similar to the way that the EEOC has successfully met challenges.
    Neither state laws nor EEOC guidelines are used to determine if something is constitutional. Gender discrimination is quite possibly going to be part of the final ruling and will definitely be a part of oral arguments as it has been part of several of the lower court rulings. However, it is each gender being discriminated against, not just one.
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  5. #25
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Helvidius View Post
    Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.

    However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows
    I agree that strict scrutiny is the most appropriate result, however there is precedent for any level. Laws relating to gender tend to get intermediate scrutiny protection, and the lower court rulings have tended to only address rational basis arguments. All the supreme court would have to do is repeat those argument or simply follow them to leave SSM with mere rational basis protection. If that happens, I expect many states to continue to pass SSM bans for a few years and lots of elected state court judges to find a rational basis, only to have them struck down quite quickly by the circuit courts.

    The argument for strict scrutiny is, however, the easiest. All that requires is saying that marriage is marriage, regardless of the genders of the people involved.
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    Neither state laws nor EEOC guidelines are used to determine if something is constitutional. Gender discrimination is quite possibly going to be part of the final ruling and will definitely be a part of oral arguments as it has been part of several of the lower court rulings. However, it is each gender being discriminated against, not just one.
    The bold is pretty much what I was referring to....a possible basis for the decision.
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    Quote Originally Posted by applejuicefool View Post
    A murderer putting a bullet through someone's brain is a medical procedure too.

  7. #27
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    Sodomy laws are unconstitutional. However, that is pretty irrelevant to the issues before the court. That sodomy laws are unconstitutional does not make orientation a factor is determining a protected class at this time. It is possible that orientation could put some one in a protected class, however currently that is not the case and would probably be done without reference to sodomy laws. Probably a more likely outcome is the court would rule as some of the lower courts have that SSM bans are a form of gender discrimination(ie men can do something women cannot, marry women, and women can do something men cannot, marry women) which would place it under heightened(intermediate) scrutiny. Also possible is that the courts will rule that since marraige is a fundamental right, it would fall under strict scrutiny. Level of review is going to be one of the biggest issues the court has to determine, and will probably take up a significant amount of the hour and a half the court has set aside to review SSM bans(the other hour is looking at the question of whether states have to recognize those married in other states).

    Does that clear things up a bit? I have spent a great deal of time over the last 3ish years studying the legal aspects of the case, reading all the rulings and alot of the interpretations of the rulings...plus I am very anal about the details on these things as you may have noticed.
    Equal protection is one way to defend gay marriage. However, I was looking at defending gay marriage through the due process clause. Statutes harming fundamental rights require strict scrutiny review by the courts. Marriage is considered a fundamental right (Lovings v. Virginia), thus any state law banning gay marriage would need to pass strict scrutiny so as not to violate substantive due process. Gay rights have already been protected under the due process clause (Lawrence v. Texas - sodomy), thus a precedent has already been set and the court may consider that in using the due process clause to defend gay marriage. My main point is that SCOTUS may look to at substantive due process to protect gay rights rather than trying to make gays a protected class.

    I doubt the court goes with gender discrimination. The statutes do not discriminate against a particular gender, and it is pretty clear the intent of the statutes is to discriminate against gays (regardless of sex). The relationship just seems a bit tenuous, and I believe most state supreme courts have not upheld gay marriage based on that argument.

    However, SCOTUS could say that gay marriage laws do not meet rational basis as a result of animus. Justice Kennedy (often the swing vote) has used animus (Romer v. Evans) as a way of saying a statute does not meet rational basis.

    Certainly, due process, equal protection, and animus will all be argued. In my initial post, it just struck me as odd that gay rights (sodomy) have been protected under the due process clause, marriage is considered a fundamental right under the due process clause, yet there are laws on the books preventing gays to marry. That was all I meant.
    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

  8. #28
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    Neither state laws nor EEOC guidelines are used to determine if something is constitutional. Gender discrimination is quite possibly going to be part of the final ruling and will definitely be a part of oral arguments as it has been part of several of the lower court rulings. However, it is each gender being discriminated against, not just one.
    This is exactly why gender discrimination does not make sense. State laws against gay marriage do not discriminate based on gender. There is no history of states preventing one gender from same-sex marriage. If state laws said lesbians could not get married, then the argument would be a good one. However, banning all gay marriages does not show an intent to discriminate against men or women differently.

    Substantive Due Process is the best argument that can be made. It will not be the only argument, but should be the main argument made in support of gay marriage.
    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

  9. #29
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Helvidius View Post
    I doubt the court goes with gender discrimination. The statutes do not discriminate against a particular gender, and it is pretty clear the intent of the statutes is to discriminate against gays (regardless of sex). The relationship just seems a bit tenuous, and I believe most state supreme courts have not upheld gay marriage based on that argument.

    .
    I'm more than happy for the court to find a more solid basis however the substance of the gender discrimination argument I referred to was based on gender discrimination in contracts, such as state-issued marriage licenses. It could be proven that one gender was being discriminated against in such contracts.

    It's my hope that the court uses a much more substantive Constitutional and humane and enlightened argument.

    Equal protection under the law seems the most likely and most appropriate overall tho...how can you deny the federal benefits and privileges of marriage to same sex couples? What could that be based on that was Constitutional?
    "Freedom doesn't mean safe, it means free."

    "No, you'll be *a* judge of that, just like everyone else who reads it."
    Quote Originally Posted by applejuicefool View Post
    A murderer putting a bullet through someone's brain is a medical procedure too.

  10. #30
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Lursa View Post
    I'm more than happy for the court to find a more solid basis however the substance of the gender discrimination argument I referred to was based on gender discrimination in contracts, such as state-issued marriage licenses. It could be proven that one gender was being discriminated against in such contracts.

    It's my hope that the court uses a much more substantive Constitutional and humane and enlightened argument.

    Equal protection under the law seems the most likely and most appropriate overall tho...how can you deny the federal benefits and privileges of marriage to same sex couples? What could that be based on that was Constitutional?
    Marriage is a fundamental right under the due process clause. Statutes interfering with fundamental rights require strict scrutiny review.

    How would you prove a gender was being discriminated against? The law doesn't target a single gender; it targets men and women equally. You would have to prove the law, on its face, discriminates against a particular gender or, if the law is neutral, the purpose of the law was to discriminate against a particular gender. I have never seen any law against gay marriage where this applies. Thus, I would argue the law violates due process or fails to meet rational basis review due to animus (animosity/hatred toward a particular group).
    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

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