I Hope I'm Wrong......

[Guest zipperzone]

I truly hope I'm wrong but with only a few days to go before The Supremes hand down their ruling on same sex marriage, I find that I am increasingly apprehensive that it will go the way many expect it to.

I don't really why I feel this way but it's probably because the vote is expected to be so close and I would hate to be disappointed.

As a Canadian it won't really effect me personally one way or the other. But I'd hate to think of so many gays that will have their life turned upside down just because a hate group of religious bigot bible thumpers think that their interpretation of morals should be forced on everybody.

I would love to be proven wrong..... time will tell

[MsGuy]

Well, sometime between tomorrow (Thurs.) and Monday we will know.

I'm more than a little apprehensive myself. There's any number of ways this could go sideways on us. For one thing Justice Kennedy has hinted before ( in Lawrence vs. Texas ?) that he wasn't comfortable ruling on the marriage question.

For another, in past cases Kennedy has shied away from explicitly holding that gays as a class are entitled to the same level of court protection ("heightened scrutiny") that racial cases, for instance, require. On the other hand, he opinions in those same cases have applied what amounts to a de facto heightened scrutiny standard, so who knows. At any rate, I don't see how he's going to rule positively for us on the marriage cases w/o admitting that he's using that legal standard.

Last, finding a national constitutional requirement that all states recognize same sex marriages is a big ask from the court, pretty much on the same level as Roe vs. Wade and the Court is well aware of all the grief they let themselves in on that one.

Cross your fingers on this one.

[Suckrates]

I truly hope I'm wrong but with only a few days to go before The Supremes hand down their ruling on same sex marriage, I find that I am increasingly apprehensive that it will go the way many expect it to.

I don't really why I feel this way but it's probably because the vote is expected to be so close and I would hate to be disappointed.

As a Canadian it won't really effect me personally one way or the other. But I'd hate to think of so many gays that will have their life turned upside down just because a hate group of religious bigot bible thumpers think that their interpretation of morals should be forced on everybody.

I would love to be proven wrong..... time will tell

The Supremes, Gee, I always LOVED them !

[jgoo]

I am not in the least bit apprehensive on the pending outcome. As with all major cases with such an expected close call as this one, there is a level of uncertainty but everything I have read from the questions asked and answered, challenges/follow-ups made and responded to points to the outcome expected and for me the uncertainty is very low at this point.

I didn't see anything in the Lawrence vs Texas decision, which Kennedy wrote for the majority, that would make me think otherwise. In fact, the part where he writes " Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress" gives some strong insight into how he may vote.

One can not discount the likelihood that Kennedy realizes he has a singular opportunity to make history in a way that will define his legacy, and that may (for right or wrong) impact his thought and decision process. I would not be surprised if he is the one who wrote the majority opinion when the decision comes out.

[RA1]

It would be extremely naïve of me to suggest that they might decide on the question of law rather than politics, wouldn't it?

Best regards,

RA1

[RA1]

Well they certainly decided the Obamacare question on politics, didn't they? Just one more large step towards socialism. At my age I would just go with the flow but I fear greatly for succeeding generations. So sorry.

Best regards,

RA1

[Guest zipperzone]

I AM SO HAPPY I WAS WRONG

[MsGuy]

It would be extremely naïve of me to suggest that they might decide on the question of law rather than politics, wouldn't it?

Best regards,

RA1

Please take a look at my post #4 in the other marriage equality thread.

[RA1]

I read your #4. It used to bother me when I learned that attorneys did their very best to not have any moral judgments, at least regarding their line of work. In other words they were generally willing to defend a serial killer as well as prosecute him (not the same person, of course). I then and now realized that the Constitution demanded this treatment of everyone. In other words, someone needed to do it and someone educated in the law would likely be best. Equal and fair treatment under the law.

During my adulthood I have always been able to follow the reasoning as handed down by the supremes. That does not mean I always agreed with it.

Any majority opinion is not always right, whatever that might mean. But it is the majority opinion. In accordance with the US system, the majority does still have the right and ability to have their opinion prevail. It can be a long and arduous process, often involving electing new folks, but it can be done.

As always, politics in various forms gets in the way. Now is no exception.

Best regards,

RA1

[AdamSmith]

Nice discussions today on SCOTUSblog.com. From one of them:

...The other fundamental disagreement [between the majority and the dissenters] is over whether constitutional protections for liberty are entirely static or whether, instead, they evolve as human understanding and social conditions evolve. In Obergefell, as in Lawrence and Windsor, Justice Kennedy strongly reaffirmed the latter position. As he put it, “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to further generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

In one sense you can read this as a flat rejection of constitutional “originalism.” That is what has the dissenters so exercised. They want to continue to operate under the Washington v. Glucksberg principle that the Due Process Clause does not protect any form of liberty that was not already protected at the time the Constitution and the Fourteenth Amendment were ratified. They see the alternative of an evolving Constitution as anathema because it allows recognition of new forms of liberty like the right of a gay couple to live together and be treated equally.

But Justice Kennedy in fact makes the claim that his view is more consistent with the actual original intent of the Framers – that they drafted our basic constitutional protections broadly so that they would be interpreted differently over time as the world, and our understanding of it, evolve. In his view, the war between originalists and advocates of the “living Constitution” misses the point: evolving protections for basic rights were the original intent.

http://www.scotusblog.com/2015/06/symposium-a-fair-and-proper-application-of-the-fourteenth-amendment/#more-229703

[RA1]

I think the original writers of the Constitution wanted it "both ways". As you know, they had a great deal of difficulty getting it to one version and approved. Then they "immediately" amended it.

It was a living, breathing "hot potato" then and remains so to this day. There is no right or wrong way to interpret it. However, there will be disagreements. The trick is to not be disagreeable.

Best regards,

RA1

[Guest CharliePS]

The Constitution is a political document, not tablets of stone dictated by Yahweh. It was created by politicians, and reflects the prevailing ideologies of its creators. It was also a compromise, since the creators did not agree on a number of issues, the most obvious being slavery and its position in their vision of the United States. As conditions on the ground changed, and the beliefs of new generations of politicians became more extreme, this led to a conflict in which the racial issue was legally resolved many years later only by violent force. Even most of those founders who were opposed to slavery did not favor political equality for free black men, and post-Civil War justices usually agreed with them. The males who created the Constitution probably never even considered the possibility that women should have any rights independent from their fathers, brothers or husbands. The "freedom of religion" right had to be added to the original document--the so-called Bill of Rights was another political compromise--and was often ignored, even by courts, especially if it involved non-believers or new religious groups that the founders hadn't contemplated (like the Mormons).

Since society evolves, the Constitution has to be amended and re-interpreted regularly to account for changes in factual conditions as well as in ideologies. One of the instruments for that has been the Supreme Court, which actually had a pretty fuzzy position in that respect, until a politically powerful Chief Justice, John Marshall, took charge and asserted the power of the court to impose its interpretations of the Constitution on the executive and the legislative branches. Changing the Constitution itself, rather than interpreting it, is very hard, which is why Scott Walker is calling for a Constitutional amendment specifically prohibiting same sex marriage (it won't happen, but it helps him with conservatives). Judicial interpretations are always done by human beings, and since they are political appointees, they will always be influenced by their personal beliefs and political affiliations as well as by their knowledge of the law. Scalia and Roberts are right in terms of legal theory, even though I believe they are wrong morally and politically--and like most people, they defend legal theory mainly when it supports their own ideological predilections.

[RA1]

In other words, politics as usual.

Best regards,

RA1

[AdamSmith]

"It's hard to believe that gay Americans achieved full constitutional personhood just five years after corporations did." Stephen Colbert

[Suckrates]

[AdamSmith]

"I never thought of marriage as something only for men and women. But I'd never marry a guy I didn't like." - Willie Nelson

http://www.texasmonthly.com/story/exclusive-willie-nelson-same-sex-marriage

[Suckrates]

[AdamSmith]

Scalia's Originalism Opposed by Madison/Jefferson

dailykos.com

Scalia's cramped view of the US Constitution, which he describes as being rooted in the original intent of the Constitution's authors, was explicitly opposed by the primary architect of the US Constitution and the Bill of Rights, Madison, as well as by Jefferson.

Scalia's version of original intent fails even on its own terms: the original intent of the Constitution evidently was to create a living document in which definitions of liberty would continually be expanded.

In Obergefell v. Hodges, the majority held that the equal protection clause of the 14th Amendment protects same sex couples from discrimination, because discrimination based on sexual orientation clearly violates the principles of equal protection.

The 14th Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Scalia claims that "equal protection of the laws," within the context of its time, was intended only to apply to issues of discrimination against African-Americans. So, Scalia fulminated, in his Obergefell dissent:

When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.

Scalia claims that his original intent doctrine requires him (and he believes, all right thinking Supreme Court Justices) to apply the standards of 1868 to what equal protection means, and to stop there. This would also mean women and people with disabilities, for example, are, according to Scalia's reasoning, outside the protection of the 14th Amendment (and such interpretations are another reason why the Equal Rights Amendment is important), but that's a different argument for a different day. Even applying his own standard, Scalia fails to explain why the authors of the 14th amendment wrote the general principle of "equal protection of the laws" into the constitution if they only meant "equal protection of the laws on the basis of race."

But what did two of the most important "founders" think of this form of constitutional interpretation?

Madison is best known today as the "father" of the Bill of Rights, since he drafted the provisions and introduced them into Congress. Madison was actually the primary architect of the US Constitution as a whole. Originally, however, he opposed a bill of rights. What was his main objection? He presciently feared that some future politicians or jurists (e.g. Scalia and his co-dissenters) might calcify the enumeration of rights they specified into a finite list that excluded the recognition of all other liberties.

Madison was convinced by the vociferous debates in the states over ratifying the Constitution, which included denunciations of the lack of a bill of rights, and by arguments by Jefferson among others, to change his mind and propose a bill of rights himself. Even so, in Madison's speech introducing the Bill of Rights to Congress, on June 8, 1789, he discussed his own fears:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

In a sadly futile attempt to prevent future Scalias (and Robertses, Alitos, and Thomases) from arguing that the rights as enumerated in 1789 were the be all and end all of liberty, Madison wrote the "last clause of the fourth resolution." That clause is now the (unjustly neglected) 9th Amendment to the US Constitution:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Madison was most concerned about violations of the rights of the minority by the majority. In a 1788 letter to Jefferson discussing the idea of a bill of rights, Madison wrote:

In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

Scalia ignores, or has so far refused to understand, that just because the rights of same sex couples have been violated by the majority for hundreds of years (including in 1868), that this is not a valid argument for continuing to violate these rights. The repudiation of the idea that a tradition of violating rights is a legitimate constitutional justification for continuing to violate rights has been a central argument of Kennedy's string of sexual orientation cases since Lawrence and Garner v. Texas. Scalia and the three other dissenters in Obergefell haven't seemed to get this yet. Ending the violations of a minority's (same sex couples') rights by a homophobic (mostly straight) majority are exactly the kinds of violations that Madison told Jefferson he hoped a bill of rights, at its best, would eventually help end.

According to Michiko Kakutani's NYT review of historian Joseph Ellis's new book, The Quartet: Orchestrating the Second American Revolution, 1783-1789, Ellis ends the book with a telling quotation from Jefferson that directly warns against freezing the interpretation of the Constitution into Original Intent oblivion:

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well; I belonged to it and labored with it. It deserved well of its country.... But I know also, that laws and institutions must go hand in hand with the progress of the human mind.

Roberts echoed Scalia's supposed "original intent" doctrine when he claimed in his Obergefell dissent (which was joined by the other three dissenters) that the majority opinion "had nothing to do with" the Constitution. Apparently, Roberts is ignorant of, or chose to ignore, Madison and Jefferson's views as enumerated above, but also of the 9th and 14th Amendments to the Constitution.

The dissenters refuse to follow Madison and Jefferson's original intent and apply the "progress of the human mind" to interpreting the meaning of the US Constitution. In this refusal, their "original intent" doctrine fails to apply the principles of equal protection and liberty to our own time. Even worse, at least at the level of logic, their decisions fail even their own putative original intent test.

http://www.dailykos.com/story/2015/07/02/1398441/-Scalia-s-Originalism-Opposed-by-Madison-Jefferson#