The Road to the US Supreme Court for Gay Marriage

[danefan]

http://www.latimes.com/news/nationworld ... 7270.story

SAN FRANCISCO (AP) — The national debate over same-sex marriage will take center stage in a California courtroom next week at a closely watched federal trial that could ultimately become the landmark case that determines whether gay Americans have a right to marry.

The case will decide a challenge to California's gay marriage ban that was approved by voters in 2008, and the ruling will likely be appealed to the U.S. Supreme Court. How the high court rules in the case could set the precedent for whether gay marriage becomes legal nationwide.
...

Should be interesting to say the least. The Plaintiffs have two very very very good trial lawyers representing them - Ted Olsen and David Boise.

[TheDancinMonarch]

http://www.latimes.com/news/nationworld ... 7270.story

SAN FRANCISCO (AP) — The national debate over same-sex marriage will take center stage in a California courtroom next week at a closely watched federal trial that could ultimately become the landmark case that determines whether gay Americans have a right to marry.

The case will decide a challenge to California's gay marriage ban that was approved by voters in 2008, and the ruling will likely be appealed to the U.S. Supreme Court. How the high court rules in the case could set the precedent for whether gay marriage becomes legal nationwide.
...

Should be interesting to say the least. The Plaintiffs have two very very very good trial lawyers representing them - Ted Olsen and David Boise.

The Bush v Gore attorneys.

[danefan]

http://www.latimes.com/news/nationworld ... 7270.story



Should be interesting to say the least. The Plaintiffs have two very very very good trial lawyers representing them - Ted Olsen and David Boise.

The Bush v Gore attorneys.

Yup - on the same side.

[danefan]

Coincidental timing - NJ Senate voted down gay marriage proposal today.
http://www.nj.com/news/index.ssf/2010/0 ... galiz.html

[dbackjon]

Following this closely

[dbackjon]

Coincidental timing - NJ Senate voted down gay marriage proposal today.
http://www.nj.com/news/index.ssf/2010/0 ... galiz.html

Look for some bruising democratic primaries in the future

[dbackjon]

Coincidental timing - NJ Senate voted down gay marriage proposal today.
http://www.nj.com/news/index.ssf/2010/0 ... galiz.html

This will go back to the NJ Supreme Court

[Ivytalk]

It's no surprise that the SCOTUS will likely be the final arbiter of this issue. Not that it should be.

[danefan]

It's no surprise that the SCOTUS will likely be the final arbiter of this issue. Not that it should be.

Why shouldn't it be?

Don't you think that SCOTUS should determine whether or not a State law banning gay marriage is Constitutional?

Don't you think SCOTUS can easily decide that issue without forcing States to legalize it?

Abortion was a similar analysis - State's cannot ban abortion outright, but they can limit it within the bounds of the US consitution.

I have a feeling you'll see SCOTUS reach the same type of conclusion.

[JoltinJoe]

It's no surprise that the SCOTUS will likely be the final arbiter of this issue. Not that it should be.

Why shouldn't it be?

Don't you think that SCOTUS should determine whether or not a State law banning gay marriage is Constitutional?

Don't you think SCOTUS can easily decide that issue without forcing States to legalize it?

Abortion was a similar analysis - State's cannot ban abortion outright, but they can limit it within the bounds of the US consitution.

I have a feeling you'll see SCOTUS reach the same type of conclusion.

I think his point is there is nothing in the US Constitution that creates a right to marry in accordance with your preference. Any holding that there is would be another act of intellectual dishonesty by five or more judges who would, if they were legislators, vote in favor of gay marriage.

[Skjellyfetti]

I think these matters should be decided by a council with a representative from each of the major denominations of Christianity.

Supreme Court should only decide elections.

That's what our founders intended.

[danefan]

Why shouldn't it be?

Don't you think that SCOTUS should determine whether or not a State law banning gay marriage is Constitutional?

Don't you think SCOTUS can easily decide that issue without forcing States to legalize it?

Abortion was a similar analysis - State's cannot ban abortion outright, but they can limit it within the bounds of the US consitution.

I have a feeling you'll see SCOTUS reach the same type of conclusion.

I think his point is there is nothing in the US Constitution that creates a right to marry in accordance with your preference. Any holding that there is would be another act of intellectual dishonesty by five or more judges who would, if they were legislators, vote in favor of gay marriage.

Whether or not the Consitution provides protection for gay marriage hasn't yet been determined by the highest court in the land, right? Whether or not you fall to one side or another on the gay marriage issue, its hard for me to see how SCOTUS isn't the appropriate decision maker as to whether the Consitution provides such protections.

[danefan]

BTW - if anyone is interested - this trial will be on Youtube everyday (tape delayed).

[JoltinJoe]

I think his point is there is nothing in the US Constitution that creates a right to marry in accordance with your preference. Any holding that there is would be another act of intellectual dishonesty by five or more judges who would, if they were legislators, vote in favor of gay marriage.

Whether or not the Consitution provides protection for gay marriage hasn't yet been determined by the highest court in the land, right? Whether or not you fall to one side or another on the gay marriage issue, its hard for me to see how SCOTUS isn't the appropriate decision maker as to whether the Consitution provides such protections.

What provision of the Constitution would provide a right to marry in accordance with your preference?

The states have historically defined and regulated marriage. Any change in how marriage is defined is an issue to be addressed by state legislatures.

[JoltinJoe]

BTW - if anyone is interested - this trial will be on Youtube everyday (tape delayed).

I cannot imagine what evidence would even be relevant. It is a purely legal issue.

Then again, we all watched David Boies place a mountain of evidence before the court in Gore v. Pam Beach Board of Electors, which no court ever considered or weighed in subsequent proceedings.

[dbackjon]

IT/Joltin. So the supremes shouldn't have ruled in Loving?

[JoltinJoe]

IT/Joltin. So the supremes shouldn't have ruled in Loving?

That was a violation of equal protection case. Once a state legislature does make a benefit available, it cannot do so in a manner that discriminates against a discrete and insular minority.

[dbackjon]

IT/Joltin. So the supremes shouldn't have ruled in Loving?

That was a violation of equal protection case. Once a state legislature does make a benefit available, it cannot do so in a manner that discriminates against a discreet and insular minority.

How is gay marriage aby different?

[JoltinJoe]

That was a violation of equal protection case. Once a state legislature does make a benefit available, it cannot do so in a manner that discriminates against a discreet and insular minority.

How is gay marriage aby different?

The court has never held that gays are a discrete and insular minority. In order to find constitutional grounds, they would have to reach such a holding ... and under prior precedent, I think it would be a stretch to do so now.

I think the Gay Marriage movement has been correctly trying to win legislative approval on a state-by-state basis. That is really where the battle belongs -- and I think that is what Ivytalk was saying.

[Ivytalk]

How is gay marriage aby different?

The court has never held that gays are a discreet and insular minority. In order to find constitutional grounds, they would have to reach such a holding ... and under prior precedent, I think it would be a stretch to do so now.

I think the Gay Marriage movement has been correctly trying to win legislative approval on a state-by-state basis. That is really where the battle belongs -- and I think that is what Ivytalk was saying.

That's right. No SCOTUS case has ever held that "strict scrutiny" applies to gays. Gay marriage is a political question that the SCOTUS should not have to resolve.

[dbackjon]

So the SCOTUS should stay out of cases regarding discrimination?

[JoltinJoe]

The court has never held that gays are a discreet and insular minority. In order to find constitutional grounds, they would have to reach such a holding ... and under prior precedent, I think it would be a stretch to do so now.

I think the Gay Marriage movement has been correctly trying to win legislative approval on a state-by-state basis. That is really where the battle belongs -- and I think that is what Ivytalk was saying.

That's right. No SCOTUS case has ever held that "strict scrutiny" applies to gays. Gay marriage is a political question that the SCOTUS should not have to resolve.

I'm glad you quoted me. Otherwise, I might never have noticed that I misspelled discrete -- twice.

[Ivytalk]

So the SCOTUS should stay out of cases regarding discrimination?

Blacks are "discrete and insular minorities." They get the beneit of strict scrutiny review in discrimination cases. Gays don't. At least so far.

[JoltinJoe]

So the SCOTUS should stay out of cases regarding discrimination?

Almost every law discriminates in some way.

The question is whether the law discriminates in a way that violates the federal constitution. In order to conclude that marriage laws which allow only for marriage of a man and woman are discriminatory, a court would have to hold that there is a fundamental right to marry in accordance with your preference. There is really no textual support for that "right" and it is certainly not inherent in common law tradition. However, that being said, it is conceivable that at least five justices will find such a right hiding in the penumbras which allegedly create an implicit "right to privacy."

And when they do that, many commentators will once again say that five court members imposed their personal preference on this issue as a matter of "constitutional right."

In the end, I think gay marriage is almost inevitable in every state. It is just that the process may be slow, and in some states even slower. The Supreme Court's intervention on the side of gay marriage will hasten the process but it will also cause civil unrest and further fracture the nation on social grounds.

[JoltinJoe]

So the SCOTUS should stay out of cases regarding discrimination?

Blacks are "discrete and insular minorities." They get the beneit of strict scrutiny review in discrimination cases. Gays don't. At least so far.

Justice Kennedy has waffled on this determination in the past. In Lawrence, for example, his opinion struck down Texas' sodomy law by holding such laws failed a "rational basis" test, thus not needing to reach the issue of whether gays were "discrete and insular" minorities.