Rough week for Lunge Pubbies.

> What we're talking about here is a change to the
> definition of marriage, which is very much a state's
> issues to decide. Marriage is not defined as a right
> in the Constitution and the history of marriage is
> not simply for self enjoyment or pursuit of happiness.

Right, and the 14th amendment of the Constitution clearly states that the states have to afford equal protection of the law to all people. So once a state right is granted (legal recognition of marriage), that right needs to be Balanced properly under the existing tests. Those test are:

STRICT SCRUTINY (Compelling state interest and restriction is necessary to advance that interest) for "Discrete insular minorities" which form 2 prongs: 1) Suspect Classifications like race, National origin, religion, alienage; and 2) Fundamental Rights like voting, Traveling between states, Access to courts, and others as defined by the courts (like marriage).

INTERMEDIATE SCRUTINY (Important state interest and restriction is substantially related) for Quasi-suspect groups Like gender.

RATIONAL BASIS (the restriction is rationally related to a legitimate state interest) For everything else, such as age, disability, wealth (taxes), and Well, whatever your heart desires.

So where does same sex marriage fall? Is this an issue of marriage? Or is this an issue of individual rights, or sexual orientation rights? I don't know, and no one does because the courts didn't answer that question in their opinion. It is a fundamental right to marry someone, but that doesn't mean the state absolutely cannot restrict who you marry.

I agree in principle with the decision, but I feel the court was wrong. They didn't properly address the issues. It should have just been allowed under full faith and credit clause and punted it for a time when more of the country is able to pull their collective heads out of their assess or bibles or wherever they are because they feel strong about telling others what they can't do.

Roberts' dissent was much like the bussing and later segregation cases in the way he approached the problem and analyzed the issue under equal protection and the 14th amendment. It shouldn't have won on that argument, this issue needs time and the current fix is the full faith and credit clause.

johnnyscarecrow

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Re: Those arent / werent the same issues.....

Jun 27, 2015, 4:04 PM [ in reply to Re: Those arent / werent the same issues..... ]

I'm saying the decision doesn't follow the current rules for 14th amendment jurisprudence, and that this decision is dangerous because it is too broad and doesn't follow the most important maxim of Supreme Court jurisprudence, decide the cases as narrowly as possible. I think the petitioners reached because they knew they had a narrow reason in the bag and hoped the court would do exactly as it did. I think thisnopinion is dangerous and will now allow a great deal of other challenges from the lunatic fringe that will only cheapen and lessen the great victory for civil rights that occurred yesterday.

The court should have simply said full faith and credit. Sorry Ohio, it's cool in Maryland, give the dude what he wants. Even Scalia would have a rough time arguing with that. But he would, because he is who he is. And I would enjoy reading that dissent.

The court was right. The rights of married couples should extend to all couples who choose to join together regardless of their sexual orientation.

But I'll play along to your devils advocate, and do a little thought exercise. I'll go through the levels of scrutiny and show how, and why this court could very well have still allowed this with a proper, limiting opinion.

First, under a strict scrutiny standard, we know marriage is a fundamental right. But what about sexual orientation? The court didn't answer this question there because it could have been broad enough to include sexual orientation as a fundamental right. Should it be a fundamental right? I think so, i don't see why not. I mean, Scalia's, Thomas', and Alito's heads would have exploded, and Scalia would burn off half of his finger going line by line in the constitution looking for the word "sexual" or "orientation," but I believe that if the court took this issue and said marriage is a fundamental right and there is no compelling state interest to limit that between a man and a woman, then I think the decision would have been 6-3 with Roberts switching sides. "Sanctity" of marriage is one argument, and the court would have been able to brush that away by saying that interest is no longer valid because (I believe, and I'm not going to look it up) that all states now allow "no fault divorces," which has only been a trend for about the last 30 years, and greatly accelerated in the last 5-10 across he nation. Further, family law is based greatly on contract principles. There are 3 results when you got divorced: 1) both parties are put into a situation eu were before the contract was entered, 2) marital assets are equally distributed so neither party is "unjustly enriched," and 3) the breaching party is punished for his breach if it was made in bad faith, and therefore the non breaching party is able to recover what they would have gotten had the contract been preformed. The states have co-opted the "love" out of marriage and look,at it from a financial standpoint. I think it's likely that had the court analyzed under this theory, the decision would have been the same.

Second, under intermediate scrutiny, this fact pattern doesn't really apply. Gender differences are based on things like you can have insurance regulations that charge a different fee for men and women because women have birth control on theirs and men don't. I guess this kind of sounds like it, but I don't know that the court would sort adding things here. I think oconnor saw the issue here in her concurrence in Lawrence, but it's hard to say. So I think the argument here to not allow same sex marriage that would be the most effective would be the marriage is about having kids. But I don't think it would be a winner because it is not a requirement of ,arrange to have kids. I think it would be 5-4 if this is where the court landed, and Roberts dissent would either be the same, and Scalia's being about this judicial excursion making up the law as it sees fit (which is kind of ironic, because if he's right, well, there's precedent for it, and he's the one that acknowledged and created the precedent).

Third, rational basis. This is where the states wanted to be. This is where Roberts' dissent lies. However, Roberts' dissent is not really an investigation on the matter, there were only 11 states where constitutional amendments had even been enacted. Further, the country is widely more accepting of this change, and where the change has come from judicial decrees rather than voters hands or legislators pens, there haven't really been any problems. See South Carolina for example. It's not like the fires from hell have rained down, or the police are rounding up burglary suspects and making them get gay married in the booking room. I think if the decision came to this prong, well, I think there may have been a plurality opinion with the Supreme Court simply remanding this to the lower courts to really find out what is going on in the psyche of the public and only revisiting the issue should the circuits split, or the states winning below. This prong wouldn't have answered the question, and this is the prong that I think most justices were confident with, but I think they were honestly hoping to resolve the issue rather than examine the law. This would have been the wrong choice for a number of reasons, and the judges know that. So they took a little of column a a little of column b, and a little of column c and said screw it.

In he end, it's a losing proposition to favor the bans on marriage. I just don't understand why anyone would be opposed to offering the same tax breaks and benefits to two people who choose to couple up and combine their buying power in order to build a life for themselves. That's all it is. No one is coming into your church and making you sit through their wedding. No one is making you marry your buddy Dave rather than your sweetheart Betty. Just live and let live.

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Oh yea!

Re: Oh yea!

Not rough at all on you pubes though.

Hillary's week wasn't much better.

It's a fake

What does that have to do with it.

Bad thing for dems though is that this week likely...

I seriously doubt it will change turnout

we'll see...I'm confident in my opinion on this though....

I understand what your saying but "rallying" is a bit late..

Re: Bad thing for dems though is that this week likely...

You probably will not get an answer; they

You rarely, if ever, answer substantive questions.....

Re: You rarely, if ever, answer substantive questions.....

yawn***

Those arent / werent the same issues.....

Re: Those arent / werent the same issues.....

Many don't like to hear this, but....

Re: Many don't like to hear this, but....

Flow, buddy, pal

Right, it's not as if heterosexual marriages are ruined.

Other than your inflammatory language

Re: Those arent / werent the same issues.....

Aero? :) seriuously...i couldnt follow that***

Re: Aero? :) seriuously...i couldnt follow that***

I'm commenting on just the decision....

Re: I'm commenting on just the decision....

Re: Those arent / werent the same issues.....

This is probably the best pro- gay marriage post I've ever seen on here

That

What a tool u are

Well,

Marriage is a constitutional right, but no specific definition of marriage is given

Re: Marriage is a constitutional right, but no specific definition of marriage is given

Re: Marriage is a constitutional right, but no specific definition of marriage is given

So after all of these years and all of the cases....

Re: So after all of these years and all of the cases....

Re: So after all of these years and all of the cases....

Three Cheers for the King***

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