US Supreme Court Hears Gay Marriage Cases

The US Supreme Court heard oral arguments for and against California’s Prop 8 ban on gay marriage yesterday, and today hears oral arguments on the Defense of Marriage Act (DOMA), a federal law which says states do not have to recognize gay marriages that take place in other states. The justices are expected to issue their decisions on these cases in late June. Many court watchers expect the SCOTUS to strike down both laws, given Justice Anthony Kennedy’s discomfort with laws discriminating against gays. It is basically certain that the four liberal justices will vote to overturn the laws, and he would be the crucial swing vote. Interestingly, it is even possible that Chief Justice John Roberts may vote to overturn as well. He invited his lesbian cousin to watch the cases, and those seat tickets are hot commodities. I think that is an interesting fact but I wouldn’t read too much into it. In fact I think the outcome is far from certain either way.

The famous conservative commentator Bill O’Reilly noted yesterday that gay marriage advocates have the truly compelling case. To paraphase Mr. O’Reilly, gays and lesbians are saying “We’re Americans, and we’re asking for equal protection under the law.” The opposition, he noted, can do nothing more than thump the Bible.

I am hopeful that the justices will do the right thing and strike down the discrimatory laws. The standard legal canon is that the state does have the authority to discriminate against individuals or groups, but only when the state has a compelling reason to do so. In other words, the absence of legal discrimination, in those rare cases, would result is greater societal harm than the discrimination itself. I have yet to see a compelling reason to discriminate against gays and lesbians. As Bill O’Reilly says, the only argument the anti-gay crowd can muster starts with “The Bible says…”. That’s not what they say in court, of course, but it’s the driving force behind their case.

What are your thoughts on the cases before the court? What do you think the court should decide?

Obviously I think the court should strike down both DOMA and Prop 8 as violating the equal protection clause. I am cautiously optimistic, given Kennedy’s past rulings on gay rights issues.

There’s also Roberts’ concern about the legacy of the court he leads, especially given today’s clear majority support for gay marriage in the US populace (IIRC, latest Pew poll says 58% support it and 33% oppose, with 70% of under-30s supporting it). History is not on the side of the homophobes. Roberts has shown himself to actually think outside the box instead of mindlessly voting the far-right vote like ScAliTomas.

Still, something is nagging at me, saying: “Remember: it’s still a majority-conservative court.” So I hope the justices will use their brains and not their emotions (the primary emotion here being fear of teh ghey).

There’s what I hope will happen and what I predict what will happen. I would like to see them overturn both Prop 8 and DOMA, but I don’t think they will do the former. My best guess (and that’s all any of us can do at this point) is that they will not give those defending Prop 8 standing, thus upholding the lower courts ruling, thus in effect overturning Prop 8, which would not effect other states. I think they will vote to overturn DOMA. These two things together will leave marriage laws up to the states but grant federal benefits to all who legally marry under such laws. I think this is the best possible solution, actually. IMO, forcing all states to rewrite their laws and allow gay marriage is a bit of a reach, would result in a culture war, hurt the reputation of the court for legislating from the bench, etc. There could be a real backlash.

The scenario I outlined will allow the states to keep playing this out, but anyone with the means to travel to any one of 9 states right now will be able to get married and get federal benefits. My guess is that it wont’ be long before more states than not have gay marriage laws. Gay marriage has momentum and nothing they say tomorrow is going to change that. I think there is no reason to fret on the future of gay marriage in the US.

As others keep pointing out, there is no rational justification for DOMA. From everything I’ve read of the congressional republican defense of DOMA, they got nothin’…not a single legal argument to stand on. Let’s see what happens :popcorn:

I think that’s at least an acceptable outcome, but I don’t believe it’s the best outcome. Here is your statement again, with one word substituted.

I don’t really care if conservatives have a hissy fit or not. Discriminating against gay couples is every bit as wrong and unconstitutional as discriminating against interracial couples. The Supreme Court legalized interracial marriage in 1967 in the Loving v. Virginia case, and there was a conservative backlash to that too. I could give a monkey’s.

Gays have the same rights as everyone else – gay men can marry women, lesbians can marry men. What’s the problem?

I think the best overall compromise would be to have different classifications of marriage: hetero and gay. Call gay marriage something else in law but the same thing colloquially, and make sure that all legal and contractual rights that apply to the former apply to the latter. Preserving the difference would help calm the culture war.

I think there will be a backlash if gay marriage becomes a legal right equal to hetero marriage because it is quite a radical step on a social level. For me it is no big deal. “Not my business. Be happy everyone! Love is great!” That’s my policy. But I still can’t quite equate the two forms of marriage. Maybe I am a dinosaur.

But for many social conservatives it is a huge deal. Those people aren’t going to go away.

I think that’s at least an acceptable outcome, but I don’t believe it’s the best outcome. Here is your statement again, with one word substituted.

I don’t really care if conservatives have a hissy fit or not. Discriminating against gay couples is every bit as wrong and unconstitutional as discriminating against interracial couples. The Supreme Court legalized interracial marriage in 1967 in the Loving v. Virginia case, and there was a conservative backlash to that too. I could give a monkey’s.[/quote]
I can see why people would want the court to move in and just sweep the whole mess up. Both laws are bad laws. I guess I’m taking a more practical view. I don’t care what conservative Christians think either. Their opinion means nothing to me and that they are now trying to play the victim card makes me laugh aloud. My concern with the backlash is that the momentum of late has been ‘by the people.’ How many states legalized gay marriage by vote in the last election? 4 I think. If the court comes in and does what the people are already doing of their own free will, it will just feel different. 9 people (or 5 more than likely) making a decision for thousands when it is already going the right way just doesn’t sit right with me at this point. People don’t like to be told they have to do something. Give it time and they will, in this case, come to the right decision and no one will be able to say the court is forcing something down their throats. As more and more states adopt gay marriage, this is going to become a non-issue. As for DOMA, it needs to be overturned. It seems Kennedy is going to take the states rights angle on this and I’m sure the liberal justices would sign on to that. If that is the decision they make, Roberts may sign on as well. I think a 6-3 ruling under this scenario looks much better than a 5-4 that forces all states to adopt gay marriage. In the long-term, I think this will be much better for everyone.

I’m not going to complain if they do overturn both under the Equal Protection Clause, as I think that is the right decision. Practically, there is an argument to be made that conservative wackos can motivate their base by doing something like trying to get a constitutional amendment against gay marriage; it wouldn’t pass, of course, but it might get them wins in Congress in 2014 if they can bus people out from churches. They may do this either way-they are wackos after all.

Gays have the same rights as everyone else – gay men can marry women, lesbians can marry men. What’s the problem?[/quote] The problem is idiots who think that is a valid argument. White men can marry white women, black men black women. What’s the problem? :loco:

Same logic, 46 years ago.

There have always been conservative forces in society opposing progress. The Constitution itself was criticized as atheistic heresy, by church leaders across the early US. Conservatives opposed the end of slavery, the end of segregation, universal suffrage, the end of anti-miscegenation laws, and now the end of discrimination against gays. That’s just the nature of conservatism - to resist change of any kind.

The beautiful part of this is that once additional freedoms are gained, the next generation of conservatives accept it as normal. Society basically recalibrates to the point where even the most conservative citizens are horrified at being compared to the conservatives of yore. I doubt there is a conservative in the US, at least one in a position of power, who laments the repeal of anti-miscegenation in 1967 by the Supreme Court. In fact, they probably find the idea of the government dictating racial criteria for marriage completely repellant. And of course there are many conservatives in interracial marriages. Senate Minority Leader Mitch McConnel for one.

If the Supreme Court does the right thing and completely overturns anti-gay marriage laws, the next generation of conservatives won’t care at all. It will be the new baseline, and a non-issue during campaigns. Like slavery, universal suffrage, segregation, and anti-miscegenation, the notion that the state should discriminate against gays will be viewed with abhorrence.

I understood your position. And you make very good points. But I would ask you to consider this. When the Supreme Court struck down Loving vs. Virginia in 1967, the states colored red in the map below still criminalized interracial marriage. The other states either never had such laws or repealed them prior to 1967.

Remember that the Lovings were imprisoned by the state of Virginia. Their crime was marrying each other. These laws were taken seriously in the South, even though the rest of the country had moved on years or decades before. My fear is that, absent a constitutional ruling, the Southern states will continue discriminating against gays for decades to come. Hundreds of thousands, perhaps millions, of gays will be born and die, having been discriminated against their whole lives. And there are many Western states with little interest in ending discrimination against gays. Absent a full constitutional ruling, I think the most likely situation is that the states which typically vote Republican will continue oppressing gays for years to come. These laws have tangible, devastating effects on gay families. I want to see the discrimination end as soon as possible, so that is why I am hoping for a full constitutional repeal of these discrimatory laws.

:laughing: :bravo: Great parody of the sort of mind-blowingly idiotic type of arguments bigots make!! I tip my hat to you sir! :notworthy:

Here are a few of my parody homophobe arguments:

  1. If gay marriage is legalized, next thing you know dogs will be marrying cats!
  2. If gay marriage is legalized, my straight marriage will spontaneously disintegrate!
  3. I don’t want gay marriage to be legal because I don’t want to get gay married!
  4. If gay marriage is legalized, the human race will die out because straights won’t have sex with each other anymore!
  5. If gay marriage is legalized, AIDS will be spread around more… because AIDS can’t be spread by straights or by unmarried gays!
  6. I am against gay marriage because MY religion forbids it. After all, everyone on the planet must follow the dictates of MY particular religion because… because … well, just because!

Etc. etc.

Personally, I’m against gay marriage and don’t feel a bit sorry for them. In fact, I think marriage should be banned all together

This seems a common sentiment among libertarians. Like most libertarian beliefs, it is entirely unpractical. Marriage is a civil institution. It has religious significance, but practical relevance is how the government treats married couples. There are some 1,100 federal benefits granted to married couples. That doesn’t even count state and local benefits. A lot of has to do with transfers of property. If marriage as a legal institution were done away with entirely, couples (straight and gay) would spent vast sums of money on legal fees to accomplish what twenty bucks per person and a few signatures on a marriage certificate address right now. Becoming legally married makes life a lot easier for couples who have chosen to spend their lives together. There are many examples, but one is the federal estate taxes that gay couples must pay when one partner dies. Another is employer-sponsored health insurance that covers spouses. Many employers now offer such coverage to any domestic partner, but the domestic partner has to pay taxes on that benefit, to the tune of several thousand dollars per year. This is true even in states where gay marriage is legal. Gay marriage can’t be left to the states. It is a federal issue whether people like it or not, and that’s not going away. Married couples aren’t going to give up over a thousand federal benefits. Marriage is here to stay. The only question is whether gay couple should have access to the same legal benefits and protections as straight couples. I have yet to hear an argument that isn’t a thinly veiled reference to the Bible. I doubt that’s your reason. So, why are you against gay marriage?

If marriage as a legal institution were done away with entirely, couples (straight and gay) would spent vast sums of money on legal fees to accomplish what twenty bucks per person and a few signatures on a marriage certificate address right now. Becoming legally married makes life a lot easier for couples who have chosen to spend their lives together. There are many examples, but one is the federal estate taxes that gay couples must pay when one partner dies. Another is employer-sponsored health insurance that covers spouses. Many employers now offer such coverage to any domestic partner, but the domestic partner has to pay taxes on that benefit, to the tune of several thousand dollars per year. This is true even in states where gay marriage is legal. Gay marriage can’t be left to the states. It is a federal issue whether people like it or not, and that’s not going away. Married couples aren’t going to give up over a thousand federal benefits. Marriage is here to stay. The only question is whether gay couple should have access to the same legal benefits and protections as straight couples.[/quote]

If it were to happen and gay marriage became legal I wouldn’t lose any sleep over it, and won’t lose sleep if it gets struck down by the court too. It’s not my battle, and I don’t feel compelled to squawk about it as a civil rights issue. I think the heart of the matter is explained in your last post. Why should legally married couples have financial advantages over gay couples, and why should gay couples get to marry and have an advantage over those who are single? If it’s a moral non-issue and gay people are loving, consenting adults that should be allowed marriage, then why is polygamy outlawed? What about incest? As long as it’s consenting adults why not allow any form of marriage no matter how creative? The line for marriage has to be drawn somewhere, so if the line is moved to include gay marriage then it has to be explained why and why it includes that but not other unorthodox forms of unions. Or better yet, why not give the same advantages to all people no matter gay, straight, married, or single?

Let polygamists and incest practitioners form a legal and moral argument and let us all decide on its worth. Gay rights activists did that two decades ago and over time won over the majority to their way of thinking. So this is not about some make-believe slippery slope. This is about a real and well argued moral and legal position that you and everyone else have been asked to consider and support (and now is going to the Supreme Court). It seems you don’t support it. False analogies aside, why?

Let polygamists and incest practitioners form a legal and moral argument and let us all decide on its worth. Gay rights activists did that two decades ago and over time won over the majority to their way of thinking. So this is not about some make-believe slippery slope. This is about a real and well argued moral and legal position that you and everyone else have been asked to consider and support (and now is going to the Supreme Court). It seems you don’t support it. False analogies aside, why?[/quote]

I already stated I don’t support it MM, and that I’m not against it too. Is my use of language really that convoluted? I’ll try not to get an in an endless circle with you guys again repeating the same thing for 30 posts like a typical political argument. You include the terms “moral argument” and “moral position.” What I’m doing is looking at it as a moral non-issue, sort of what the supreme court will be doing I hope. Gays have been fighting 40 years to make homosexuality a moral non-issue. From a moral standpoint, many people still find it morally substandard. It’s not just religion too. I know several atheist that find homosexuality repulsive. Going around banging as many girls as you can in bars is a moral issue for some too. It’s certainly not a legal issue if the interactions are consensual by all parties involved. Keep your ideas of morality out of it.

So what we have left is the legal issue. Homosexuality is not what’s on the stand now, it’s the institute of marriage. If gay activists have been able to argue a moral position for gay marriage and the majority finally agrees, it’s still not a legal basis to change anything. When redrawing the definition for marriage is considered, it’s marriage itself that is being reexamined. As such, I think considering other cases of “we love, therefore we should be allowed marriage” is entirely valid and not a fake analogy at all. It’s exactly what the court needs to determine. Why can’t I have a non-intimate marriage with a friend? It’s not allowed because I didn’t campaign long enough? I don’t have enough political impetus to grant me individual freedom and liberty? Laws in the U.S. were not meant to be shifted around at the whims of majority opinion. They are supposed to protect the rights of individuals despite the majority, and even from the majority. If the SC is going to determine that gay marriage should be legal, then they should explain the boundaries of marriage and why they decided on those particular boundaries. Not because it’s politically popular, but because a of sequence of reasoning in the spirit of civil liberties. BTW MM, you sound like you don’t support polygamy. Fake analogies aside, why?

Edit: My particular angle is probably irrelevant in this particular case anyway. The SC is debating the legality of bans against same-sex marriages rather than the legal basis of same-sex marriage itself, or is it the same thing? :ponder:

Morality and legality are inextricably intertwined. I never understood why some people think they’re somehow separate things. If homosexuality were truly immoral, then it should be illegal. It’s up to society to make that decision.

No, the issue before the court isn’t that broad. Gay marriage is the issue before the court. Not polygamy or polyandry or plural marriage of any kind. Not anything else you mentioned. And actually, there are two specific issues. The Prop 8 case does ask the court to consider the constitutionality of gay marriage, but the justices aren’t even obligated to rule that broadly. They could just rule that the plaintiffs don’t have standing. The DOMA case questions whether Congress violated the constitutional guarantee of equal protection under the law when it passed DOMA. The court isn’t obligated or expected to rule on the total boundaries of marriage. And there’s no chance it’s going to.

Historically, the extension of rights to previously disenfranchised groups, such as landless peasants, minorities, and women, has been addressed on a case by case basis. That’s just how our political and legal system works. Slippery slope arguments don’t work in the context of government because we know that historically there’s no such thing. Laws are passed painfully and slowly and the courts tend to be conservative and wary of change.

If the proponents of plural marriage want to argue their case before society and the courts, then let them come forward and do so. But it’s a separate issue than gay marriage, and in any case is not under review by the Supreme Court.

[quote=“Gao Bohan”]

Morality and legality are inextricably intertwined. I never understood why some people think they’re somehow separate things.[/quote]

Not really. Laws are primarily designed to prevent people from infringing on the rights of others. Morality itself is another consideration. Outlawing alcohol in the 1920s was an attempt at legislating morality, and failed miserably. The war on drugs is equally ineffective and misguided. Nothing to do with protecting the rights of others, everything to do with morality.

Rights for landless peasants? What country are you talking about?

Not quite sure what you and MM mean by slippery slopes. I don’t see how that term relates to anything I mentioned

Not really sure if that’s an accurate statement. The civil rights movement brought a lot of changes and happened fairly quickly.

Right. That’s why I added the disclaimer that my angle of reasoning was actually irrelevant concerning the supreme court’s current debate. Now you’re just beating a dead horse :smiley:

I understand that in the libertarian philosophy, the primary purpose of laws is to prevent people from infringing on the rights of others. However, that has never been true in the United States. From the very beginning, we have legislated morality. To take an example relevant to our discussion, state legislatures began criminalizing homosexual acts before the ink on the Constitution was dry. In most states, if a woman shows her breasts in public she will be imprisoned. The House Un-American Activities Committee interrogated hundreds of Americans for thought crimes during the Red Scare and imprisoned dozens for “contempt of Congress”. And these are just examples of punishments. Federal, state, and local governments offer many thousands of incentives for socially desirable behavior. The federal government believes that marriage is wholesome and beneficial and provides, as determined by the Supreme Court this week, over 1,100 benefits to married persons. The federal government believes that home ownership makes people good citizens and reduces crime, so mortgages are subsidized in the form of tax breaks. Prohibition and the War on Drugs are other good examples. Success or failure is irrelevant. Morality is very much on the table in terms of legislation and always has been.

The good ole US of A. Voting rights were highly restricted in early America, essentially to wealthy, land-owning white men. This was true until the War of 1812 and the rise of Jacksonian Democracy.

You referenced plural marriage. The typical construction is that if the court legalizes gay marriage, why not plural marriage etc.

The civil rights movement began in the 1860s during the Reconstruction Era. Blacks did not obtain equal rights until the 1960s. I don’t think a century qualifies as “fairly quickly”.

And yet you made an argument against gay marriage anyways. You claim to be neutral but it’s fairly obvious you are opposed to equal rights for gays.

[quote=“louisfriend”]
Rights for landless peasants? What country are you talking about? [/quote]

Brazil!

http://en.wikipedia.org/wiki/Landless_Workers%27_Movement

Well Gao Bohan, you’re all over the place with your references. The problem is it seems easy for you to misinterpret what I write and mislabel my position. Maybe if you could forget about Libertarianism for a minute you could live in the present moment and put down your rubber stamps. You seem like a well read sort of fellow. Too bad you seem to have a hard time thinking outside of what’s been crammed in your head. I understand things happened before the civil rights movement really took off, but to say that particular movement started in 1860 doesn’t even make sense. That’s one example of what I’m talking about. Little bits of dates and data doesn’t amount to clear thinking.