Louisiana ruling breaks pro-gay marriage streak

matchlight said:

I cited the source for that quote right at the end of it.



I would put it this way: starting with Romer, the justices who have signed on to the homosexual agenda, led by Anthony Kennedy, began to swing into high gear. The majority decision in Romer is a good example of the Supreme Court exceeding its constitutional authority and riding roughshod over the rights of the people of a state. That amendment to the Colorado constitution did not unfairly restrict the rights of homosexuals, nor was there evidence it was inspired by animosity. It was simply an attempt by the people of Colorado to prevent municipal governments from making ordinances that granted homosexuals, but not other people, rights in excess of those available under the state's laws--as several of them had done.

Sure as hell does not comport with the extremely deferential rules the Court itself has established for rational basis review, as set out in the passage I quoted. There is a very good reason for that deference, by the way, which that passage alludes to when it mentions that the Court has no authority to "sit as a superlegislature." And that is respect for the separation of powers, a feature designed into the Constitution as one of a the main checks on abuse of government power. I think Justice Scalia hit it right on the head in his dissenting opinion in Romer:

The constitutional amendment before us here is not the manifestation of a "'bare ... desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court . . . Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive
sense, but merely denies them preferential treatment.



Going by Kennedy's opinions in Romer and Lawrence, particularly, I'd say that if the Supreme Court ever declares a constitutional right to same-sex marriage, it's most likely that would be its rationale.

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Preferential treatment?? Hahahahahaha. Oh god,that's rich. Do explain, my friend, what special privilege would be granted to homosexual couples that wasn't also granted to heterosexual couples. :lamo

Deuce said:

This is just plain stupid. If "it was enacted" inherently satisfies the rational basis test, then rational basis isnt a test at all. and the courts have recognized the stupidity of this notion and explicitly rejected the idea that passing a legislator is enough,



Slippery slope fallacy is still a fallacy in the legal world. We can't let interracial couples marry, because then we have to let people marry children!






Redress against tyranny of the majority is part of the court's job. "Will of the people" and "tradition" dont satisfy the rational basis test.

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It's not a slippery slope if asked to the plaintiffs and they cannot argue why their brand is different than any of those alternative brands; additionally, they could not avoid the eventual conclusion and admitted that those other alternatives were by and large exactly the same thing that their brand was asking for the courts to decide.. You just so very much wish it to be a logical fallacy that it burns in you.

Tim-

Deuce said:

Preferential treatment?? Hahahahahaha. Oh god,that's rich. Do explain, my friend, what special privilege would be granted to homosexual couples that wasn't also granted to heterosexual couples. :lamo

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Boy you really have a reading problem don't you? Turn off the blinders for a moment, Deuce? He is saying that the preferential treatment means granting their request against the peoples will over other requests that by and large the people would have full authority to otherwise be in their right to deny.


Tim-

Deuce said:

Preferential treatment?? Hahahahahaha. Oh god,that's rich. Do explain, my friend, what special privilege would be granted to homosexual couples that wasn't also granted to heterosexual couples. :lamo

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Yes, it is good for a laugh to see someone with your knowledge of the law mocking Justice Scalia. I don't need to explain anything for him--read the case.

the end result of all this is going to be anti-gay side getting rekt by SCOTUS.

This thread is meaningless, it won't change the end result.

SSM is going to be legalized, learn to deal with it (sidenote: I wonder how old the anti SSM posters here are...).

Luftwaffe said:

the end result of all this is going to be anti-gay side getting rekt by SCOTUS.

This thread is meaningless, it won't change the end result.

SSM is going to be legalized, learn to deal with it (sidenote: I wonder how old the anti SSM posters here are...).

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Correction, it will be legal in some places and not in others. Feldman's ruling was actually quite brilliant, and legally consistent with the precedent set before the courts. In fact one might argue that in order for those other 20 state courts to rule in favor of SSM, they ignored some very profound and institutional tenants of the judicial process. My guess is that in order for the USSC to overturn Feldman's decision it will have to revisit a great many other cases where Feldman's' reasoning was sacrosanct. Something I imagine they would be unwilling to do.

What does someone's age have to do with interpreting constitutional law, unless you meant to say that young folks really aren't up to speed? You prefer feel goodie legal rulings over long standing legal principles, I expect?


Tim-

Hicup said:

Boy you really have s a reading problem don't you? Turn off the blinders for a moment, Deuce? He is saying that the preferential treatment means granting their request against the peoples will over other requests that by and large the people would have full authority to otherwise be in their right to deny.


Tim-

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Maybe the most biting thing Justice Scalia said in his dissenting opinion in Romer was this:


"Today's opinion has no foundation in American constitutional law, and barely pretends to."

The same could be said of the God-awful, completely unprincipled opinions Justice Kennedy wrote in Casey, Lawrence, and Windsor. He grew up in Sacramento, and as a high school student once got to shake the hand of his hero, the then-Governor of California Earl Warren. Sometimes I think Kennedy imagines he's the reincarnation of Chief Justice Warren, arrogating to the Supreme Court the authority to right all sorts of social wrongs, something the Warren Court became famous (or infamous) for doing.

matchlight said:

Maybe the most biting thing Justice Scalia said in his dissenting opinion in Romer was this:


"Today's opinion has no foundation in American constitutional law, and barely pretends to."

The same could be said of the God-awful, completely unprincipled opinions Justice Kennedy wrote in Casey, Lawrence, and Windsor. He grew up in Sacramento, and as a high school student once got to shake the hand of his hero, the then-Governor of California Earl Warren. Sometimes I think Kennedy imagines he's the reincarnation of Chief Justice Warren, arrogating to the Supreme Court the authority to right all sorts of social wrongs, something the Warren Court became famous (or infamous) for doing.

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That's why it's called the Warren court.


Tim-

Hicup said:

Correction, it will be legal in some places and not in others. Feldman's ruling was actually quite brilliant, and legally consistent with the precedent set before the courts. In fact one might argue that in order for those other 20 state courts to rule in favor of SSM, they ignored some very profound and institutional tenants of the judicial process. My guess is that in order for the USSC to overturn Feldman's decision it will have to revisit a great many other cases where Feldman's' reasoning was sacrosanct. Something I imagine they would be unwilling to do.

What does someone's age have to do with interpreting constitutional law, unless you meant to say that young folks really aren't up to speed? You prefer feel goodie legal rulings over long standing legal principles, I expect?


Tim-

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Don't care, it's going to get legalized

Hicup said:

It's not a slippery slope if asked to the plaintiffs and they cannot argue why their brand is different than any of those alternative brands; additionally, they could not avoid the eventual conclusion and admitted that those other alternatives were by and large exactly the same thing that their brand was asking for the courts to decide.. You just so very much wish it to be a logical fallacy that it burns in you.

Tim-

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Again, the burden is not on proponents of same-sex marriage to justify a ban on polygamy. If there is no legitimate reason to ban polygamy, there's no legitimate reason to ban polygamy. This has no bearing on same-sex marriage any more than interracial marriage did. But fine, let's go with your slippery slope. Because you are unable to identify why your brand of marriage is different than same-sex marriage, we have to legalize same-sex marriage.

Hicup said:

Boy you really have a reading problem don't you? Turn off the blinders for a moment, Deuce? He is saying that the preferential treatment means granting their request against the peoples will over other requests that by and large the people would have full authority to otherwise be in their right to deny.


Tim-

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We have a constitution to ensure that you don't have that authority. You don't get to squash the rights of the minority just because you have enough votes.

matchlight said:

Yes, it is good for a laugh to see someone with your knowledge of the law mocking Justice Scalia. I don't need to explain anything for him--read the case.

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Scalia is a partisan hack and even he admits that Lawrence requires us to legalize same-sex marriage.

matchlight said:

Maybe the most biting thing Justice Scalia said in his dissenting opinion in Romer was this:


"Today's opinion has no foundation in American constitutional law, and barely pretends to."

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Funny, I say that about many of Scalia's writings. Scalia is the sort of person to say "this court has no authority to overturn legislation" when the day before he had just voted to overturn legislation! (edit: well, just released the decisions, anyway)

United States vs. Windsor

"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

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The day before, in Shelby County, Albama v. Holder he votes to overturn section 4 of the Voting Rights Act.


I've already dispensed with the "connecting children to biological parents" reasoning. Give another legitimate purpose. I'll destroy it. And maybe if you really want a debate here, you'll do it without the personal attacks.

Deuce said:

Again, the burden is not on proponents of same-sex marriage to justify a ban on polygamy. If there is no legitimate reason to ban polygamy, there's no legitimate reason to ban polygamy. This has no bearing on same-sex marriage any more than interracial marriage did. But fine, let's go with your slippery slope. Because you are unable to identify why your brand of marriage is different than same-sex marriage, we have to legalize same-sex marriage.

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But the people have said that traditional marriage is superior to homosexual marriage, and they are correct! It is also superior to any other kind of alternative marriage. You keep including race as tantamount to the plight of gays, and that has been repeatedly refuted as complete and utter nonsense, but I understand that this is your and narrative and that of the gay rights crowd, and you all continue to do it, BUT clear thinking American's with their own minds and sense of common sense reject that argument on its face..


Tim-

Hicup said:

But the people have said that traditional marriage is superior to homosexual marriage, and they are correct! It is also superior to any other kind of alternative marriage. You keep including race as tantamount to the plight of gays, and that has been repeatedly refuted as complete and utter nonsense, but I understand that this is your and narrative and that of the gay rights crowd, and you all continue to do it, BUT clear thinking American's with their own minds and sense of common sense reject that argument on its face..


Tim-

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"The people said so" does not satisfy the rational basis test. That's just a rewording of "it was enacted, therefore it is legitimate."

If that satisfies the test, rational basis isn't a test. This idea has already been dismissed by the courts.

Even accepting the sketchy premise that rational basis is the correct level of scrutiny, you still haven't met it.

Navy Pride said:

Good for La.

Louisiana ruling breaks pro-gay marriage streak

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As Louisiana goes, so goes...Mississippi? Alabama? Nobody?

The legal question here is one of discrimination and that is why arguments supporting same-sex marriage bans almost invariably fail in the courtroom and will ultimately fail in the Supreme Court. The State can undermine virtually any constitutional right it wants to so long as it can demonstrate a compelling State interest AND applies such a limitation equally. That last part is why the State of Texas lost the Lawrence v. Texas case and why same-sex marriage bans will be struck down by the Supreme Court. Even if a State were to demonstrate a compelling interest, which has yet to happen, none of the States apply it equally across all marriage license applicants.

Deuce said:

"The people said so" does not satisfy the rational basis test. That's just a rewording of "it was enacted, therefore it is legitimate."

If that satisfies the test, rational basis isn't a test. This idea has already been dismissed by the courts.

Even accepting the sketchy premise that rational basis is the correct level of scrutiny, you still haven't met it.

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Nice strawman.. The people through their representative legislative body do have the duty to provide for the most stable society they believe is possible. Legislative bodies are important for many reasons, and in this matter, through rigorous debate, even though hotly contested on a matter not settled in the foray of public opinion, or science for that matter, the duty of the citizenry is to decide these matters, and unless it becomes unambiguously clear and evident that denying SS couples the privilege of state sanctioned marriage - along with the reasonable assumption that by doing so you open the door to any other alternative marriage, then society should err with caution. It is reasonable for a civilized society to want to not do that, and to demand that their representatives echo their wants and desires. This process is rational. It is for you, like it is with the plaintiffs in the case at bar, to answer how their brand of marriage would not create a precedence for other types of marriage, to which they admitted they could not, nor could they say why their brand of marriage was superior or necessary for society to adopt over all the other possible alternatives - further, admission that endless types of marriages would be deleterious to the institution of marriage, but more importantly to society, they impeach the very idea they bring to the bench.


Tim-

Hicup said:

Nice strawman.. The people through their representative legislative body do have the duty to provide for the most stable society they believe is possible. Legislative bodies are important for many reasons, and in this matter, through rigorous debate, even though hotly contested on a matter not settled in the foray of public opinion, or science for that matter, the duty of the citizenry is to decide these matters, and unless it becomes unambiguously clear and evident that denying SS couples the privilege of state sanctioned marriage - along with the reasonable assumption that by doing so you open the door to any other alternative marriage, then society should err with caution. It is reasonable for a civilized society to want to not do that, and to demand that their representatives echo their wants and desires. This process is rational. It is for you, like it is with the plaintiffs in the case at bar, to answer how their brand of marriage would not create a precedence for other types of marriage, to which they admitted they could not, nor could they say why their brand of marriage was superior or necessary for society to adopt over all the other possible alternatives - further, admission that endless types of marriages would be deleterious to the institution of marriage, but more importantly to society, they impeach the very idea they bring to the bench.


Tim-

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No, you are literally just restating "because this was legislated, it passes the rational basis test."

That isn't how the 14th amendment works. That isn't how any level of constitutional scrutiny works. Banning redheads from marrying blondes would pass constitutional scrutiny using your line of reasoning, because the people elected the representatives who made that law. It's ridiculous.

"I want it" is not a rational basis. Unless you're six years old, anyway. And honestly, I have no idea what to say to someone who thinks that someone has to justify same-sex marriage by proving it wont lead to other types of marriage. Why don't you justify heterosexual marriage by proving it doesn't lead to marrying animals or furniture?

Napoleon said:

The State can undermine virtually any constitutional right it wants to so long as it can demonstrate a compelling State interest AND applies such a limitation equally.

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Demonstrating a compelling interest is the language of strict scrutiny. In due process and equal protection challenges, that level of scrutiny applies only to laws that involve a fundamental right or create a suspect classification. Contrary to what you're claiming, it is very hard for a state to show that a challenged law is necessary to achieve a compelling government interest, as it has to do for the law to survive strict scrutiny. But everything in the Supreme Court's decisions in this area--Romer and Lawrence in particular--suggests the Court will want to stay far away from using heightened scrutiny if it ever evaluates the constitutionality of a same-sex marriage law.

That last part is why the State of Texas lost the Lawrence v. Texas case

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I don't read Lawrence that way. What it turned on was the majority's decree that promoting the views of the majority on sexual morality is no longer even a legitimate interest of a state government. Evidently the fact the Supreme Court had never even hinted at such a thing, and the fact every state in the country had from the beginning taken for granted that regulating sexual morals was a legitimate government interest meant little or nothing to Justice Kennedy et al.

What Kennedy was picking up on was an idea expressed by Justice Stevens in his dissenting opinion seventeen years earlier in Bowers v. Hardwick, a decision that upheld a Georgia sodomy law and that the Lawrence majority claimed to be overruling. I say "claimed" because the opinion is very careful to leave in place the central holding of Bowers: that there is no constitutional right to engage in homosexual sodomy. The majority's reasoning in Lawrence was that the Texas sodomy law was unconstitutional not because it infringed some protected constitutional right, but because advancing the majority of Texans' moral disapproval of homosexual sodomy was not a legitimate government interest. Completely unprecedented in our laws, and it puts laws against things like bestiality, adult incest, bigamy, prostitution, etc. on very shaky ground.

none of the States apply it equally across all marriage license applicants.

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I don't know what you are trying to say. No state marriage law treats all would-be marriage partners equally, or ever has. They all discriminate against prospective partners when one or both is younger than a certain age. They all discriminate against prospective partners when one or both is already married. They all discriminate against partners who are more closely related by blood than some specified degree. They all discriminate against plural partners. Where is the equal protection of the laws, that all this flagrant discrimination is tolerated?

matchlight said:

The State can undermine virtually any constitutional right it wants to so long as it can demonstrate a compelling State interest AND applies such a limitation equally.
Demonstrating a compelling interest is the language of strict scrutiny. In due process and equal protection challenges, that level of scrutiny applies only to laws that involve a fundamental right or create a suspect classification. Contrary to what you're claiming, it is very hard for a state to show that a challenged law is necessary to achieve a compelling government interest, as it has to do for the law to survive strict scrutiny.



I don't read Lawrence that way. What it turned on was the majority's decree that promoting the views of the majority on sexual morality is no longer even a legitimate interest of a state government. Evidently the fact the Supreme Court had never even hinted at such a thing, and the fact every state in the country had from the beginning taken for granted that regulating sexual morals was a legitimate government interest meant little or nothing to Justice Kennedy et al.

What Kennedy was picking up on was an idea expressed by Justice Stevens in his dissenting opinion seventeen years earlier in Bowers v. Hardwick, a decision that upheld a Georgia sodomy law and that the Lawrence majority claimed to be overruling. I say "claimed" because the opinion is very careful to leave in place the central holding of Bowers: that there is no constitutional right to engage in homosexual sodomy. The majority's reasoning in Lawrence was that the Texas sodomy law was unconstitutional not because it infringed some protected constitutional right, but because advancing the majority of Texans' moral disapproval of homosexual sodomy was not a legitimate governmet in
i
I don't know what you are trying to say. No state marriage law treats all would-be marriage partners equally, or ever has. They all discriminate against prospective partners when one or both is younger than a certain age. They all discriminate against prospective partners when one or both is already married. They all discriminate against partners who are more closely related by blood than some specified degree. They all discriminate against plural partners. Where is the equal protection of the laws, that all this flagrant discrimination is tolerated?

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Expressing a moral disapproval of homosexual sodomy isn't a legitimate state interest.

matchlight said:

Demonstrating a compelling interest is the language of strict scrutiny. In due process and equal protection challenges, that level of scrutiny applies only to laws that involve a fundamental right or create a suspect classification.

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The Supreme Court defined marriage as a fundamental right in Loving v. Virginia.

matchlight said:

Contrary to what you're claiming, it is very hard for a state to show that a challenged law is necessary to achieve a compelling government interest, as it has to do for the law to survive strict scrutiny.

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I never claimed that demonstrating a compelling interest is easy.

matchlight said:

I don't read Lawrence that way. What it turned on was the majority's decree that promoting the views of the majority on sexual morality is no longer even a legitimate interest of a state government. Evidently the fact the Supreme Court had never even hinted at such a thing, and the fact every state in the country had from the beginning taken for granted that regulating sexual morals was a legitimate government interest meant little or nothing to Justice Kennedy et al.

What Kennedy was picking up on was an idea expressed by Justice Stevens in his dissenting opinion seventeen years earlier in Bowers v. Hardwick, a decision that upheld a Georgia sodomy law and that the Lawrence majority claimed to be overruling. I say "claimed" because the opinion is very careful to leave in place the central holding of Bowers: that there is no constitutional right to engage in homosexual sodomy. The majority's reasoning in Lawrence was that the Texas sodomy law was unconstitutional not because it infringed some protected constitutional right, but because advancing the majority of Texans' moral disapproval of homosexual sodomy was not a legitimate government interest. Completely unprecedented in our laws, and it puts laws against things like bestiality, adult incest, bigamy, prostitution, etc. on very shaky ground.

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The issue of whether or not the State's judgement of morality constituted a compelling interest played only a minor role in the decision. The cornerstone of the decision, in my view, rested on the Supreme Court's disagreement with the State on the constitutionality of how the law was applied. The State admitted that it was only applying the law to homosexuals, that heterosexuals were free to engage in sodomy, and argued that this was Constitutional. The Court strongly disagreed.

matchlight said:

Maybe the most biting thing Justice Scalia said in his dissenting opinion in Romer was this:


"Today's opinion has no foundation in American constitutional law, and barely pretends to."

The same could be said of the God-awful, completely unprincipled opinions Justice Kennedy wrote in Casey, Lawrence, and Windsor. He grew up in Sacramento, and as a high school student once got to shake the hand of his hero, the then-Governor of California Earl Warren. Sometimes I think Kennedy imagines he's the reincarnation of Chief Justice Warren, arrogating to the Supreme Court the authority to right all sorts of social wrongs, something the Warren Court became famous (or infamous) for doing.

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So you call the majority opinion in Lawrence unprincipled while defending the completely mind numbing populist garbage by Scalia: "Many americans don't want homosexuals as neighbors" to justify his vote, just after lamenting that the court "ought not to get involved in the culture war." What a two faced piece of ****.

From wiki: "In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA (codified at 1 U.S.C. § 7) to be unconstitutional,[1][2][3][42] "as a deprivation of the liberty of the person protected by the Fifth Amendment".[5]:25[43] The Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages,"

Scalia (and yourself it seems) can stop lying that there was no intent to find constitutional basis for Windsor. Anyone not completely enslaved to the religious right can see that "DOMA" violated equal protection. This is a worthless complaint from scalia anyway, since where the hell does the constitution say "we don't want you as neighbors so you don't get the same rights"?

Just be grateful the next feud with your neighbor doesn't result in yourself being unable to marry or choose your sex partner, though i sometimes think a taste of such 2nd class status is the only way people like you could comprehend how hateful these 'causes' are.

chromium said:

So you call the majority opinion in Lawrence unprincipled while defending the completely mind numbing populist garbage by Scalia: "Many americans don't want homosexuals as neighbors" to justify his vote, just after lamenting that the court "ought not to get involved in the culture war."

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It's clear Justice Scalia's words sometimes reach numb minds, but I don't blame Scalia for making them numb. I have no doubt that many Americans do not want homosexuals as neighbors--or their business partners, or their children's teachers. What of it? There's no law that says anyone has to approve of homosexuality, or like homosexuals.

I agree with him completely that the Supreme Court exceeds its authority in decisions like Lawrence. It is a fundamentally undemocratic process.

What a two faced piece of ****.

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Are you addressing that to Scalia, or to me? It's not at all clear from the context.

Scalia (and yourself it seems) can stop lying

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It seems? You are calling me a liar. If you think the civility standards on these forums allow that, keep it up, and we will find out very quickly.

that there was no intent to find constitutional basis for Windsor.

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I don't give a damn if there was an intent to find a constitutional basis for a decision. What counts is whether there is one that it rational and intelligible. As Justice Scalia noted, the majority decision is so garbled it's not possible to say for sure just what the constitutional basis for it is. The decisions Justice Kennedy authored in Casey, Romer, Lawrence, and Windsor should be used in con law classes as examples of the Supreme Court cooking up gobbledygook to justify the result the majority wanted.

Anyone not completely enslaved to the religious right

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What book did you get that catchy bit of doggerel from?

can see that "DOMA" violated equal protection.

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Is that what you think Kennedy's opinion said? I'm with Scalia--it's so confused and garbled I'm really sure if it's based on equal protection of something else. But with your knowledge of constitutional law--which seems to be far beyond even Scalia's--apparently it's clear to you.

where the hell does the constitution say "we don't want you as neighbors so you don't get the same rights"?

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More to the point, what is the basis for making homosexuals a protected class under the Fourteenth Amendment? I guess you know that amendment was directed at blacks.

Just be grateful the next feud with your neighbor doesn't result in yourself being unable to marry or choose your sex partner, though i sometimes think a taste of such 2nd class status is the only way people like you could comprehend how hateful these 'causes' are.

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People like me? What the hell is that supposed to mean? This is the third time in a single post you have made a personally insulting remark. If you say anything like that to me again, I will report you for it. I came to this site for civil, intelligent debate--I can hear offensive nonsense from any dope on a bar stool.

matchlight said:

It's clear Justice Scalia's words sometimes reach numb minds, but I don't blame Scalia for making them numb. I have no doubt that many Americans do not want homosexuals as neighbors--or their business partners, or their children's teachers. What of it? There's no law that says anyone has to approve of homosexuality, or like homosexuals.

I agree with him completely that the Supreme Court exceeds its authority in decisions like Lawrence. It is a fundamentally undemocratic process.

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It's interesting that someone like Scalia can declare the court exceeds its authority in overturning democratically enacted legislation while simultaneously voting to overturn democratically enacted legislation. Yeah, no wonder you like Scalia. Because then you get to twist the constitution into whatever belief you like.