Split decision on marriage equality?

[PJS]

In general, judicial restraint -a deference to legislative bodies or referendums- has not been the hallmark of the Court over the past ten or fifteen years. I think that bodes well for overturning DOMA and Prop 8. The four justices appointed by Democrats-Ginsburg,Breyer,Soto, and Kagan just need one moderate/conservative to side with them as I see all four of those as highly likely to overturn both policies. Federalism issues often bring conservatives to the state supremacy side and that could do the trick. The other interesting constitutional issue involves the level of scrutiny which may be attached to equal protection(14th Amend,) claims. If the Court jacks the burden up to a heightened level, this issue is rolling down hill rapidly.

[SGOS]

Even if gays win these cases, I will still be appalled if it isn't a unanimous decision.

I would be absolutely stunned if it is a unanimous decision or even a significant majority, though I agree that it should. An awful lot of newsworthy decisiosn in recent years have been 5-4 along "party" lines.

For many years, I was under the impression that the Supreme Court was the one branch of government that was impartial.  But it's obvious that it's just like the other two branches.  I may not have been paying enough attention in the past, but I still wonder sometimes if the court has changed, or if it's just because I'm more aware.

[SGOS]

In general, judicial restraint -a deference to legislative bodies or referendums- has not been the hallmark of the Court over the past ten or fifteen years. I think that bodes well for overturning DOMA and Prop 8. The four justices appointed by Democrats-Ginsburg,Breyer,Soto, and Kagan just need one moderate/conservative to side with them as I see all four of those as highly likely to overturn both policies. Federalism issues often bring conservatives to the state supremacy side and that could do the trick. The other interesting constitutional issue involves the level of scrutiny which may be attached to equal protection(14th Amend,) claims. If the Court jacks the burden up to a heightened level, this issue is rolling down hill rapidly.

Well, let's imagine that the issue is settled by the Court as a state's rights issue.  Wouldn't that nullify just about anything the Federal government has to say about gay marriage?  Who has the most to gain or lose in that case?

[Wheatthins]

Even if gays win these cases, I will still be appalled if it isn't a unanimous decision.

I would be absolutely stunned if it is a unanimous decision or even a significant majority, though I agree that it should. An awful lot of newsworthy decisiosn in recent years have been 5-4 along "party" lines.

For many years, I was under the impression that the Supreme Court was the one branch of government that was impartial.  But it's obvious that it's just like the other two branches.  I may not have been paying enough attention in the past, but I still wonder sometimes if the court has changed, or if it's just because I'm more aware.

No, the court has always been like this since the start.   And that's not a bad thing either mind you.

[PJS]

In general, judicial restraint -a deference to legislative bodies or referendums- has not been the hallmark of the Court over the past ten or fifteen years. I think that bodes well for overturning DOMA and Prop 8. The four justices appointed by Democrats-Ginsburg,Breyer,Soto, and Kagan just need one moderate/conservative to side with them as I see all four of those as highly likely to overturn both policies. Federalism issues often bring conservatives to the state supremacy side and that could do the trick. The other interesting constitutional issue involves the level of scrutiny which may be attached to equal protection(14th Amend,) claims. If the Court jacks the burden up to a heightened level, this issue is rolling down hill rapidly.

Well, let's imagine that the issue is settled by the Court as a state's rights issue.  Wouldn't that nullify just about anything the Federal government has to say about gay marriage?  Who has the most to gain or lose in that case?

It would and that could cut both ways, making geography paramount. The 14th Amendment's Equal Protection clause applies to states, however, and if that is the basis of the ruling, and it's highest criterion is applied for discrimination, then it seems orientation considerations are not likely to last.

[SGOS]

No, the court has always been like this since the start.   And that's not a bad thing either mind you.

How can partiality be a good for justice?

[Wheatthins]

No, the court has always been like this since the start.   And that's not a bad thing either mind you.

How can partiality be a good for justice?

A: if we wanted justice to be completely impartial, we would have just replaced judges and juries with robots because,
B: there are many competing legal theories out there (some better than others) that differ on concepts in justice that are valid enough to have yet to go away, even after many centuries of democratic debate on them.
Simply put, shit isn't black and white like we sometimes wish it was.

[BarkAtTheMoon]

Well, let's imagine that the issue is settled by the Court as a state's rights issue.  Wouldn't that nullify just about anything the Federal government has to say about gay marriage?  Who has the most to gain or lose in that case?

IMO DOMA is the more important battle. California's going to toss Prop 8 and probably legalize gay marriage in legislature or with more ballot initiatives (and holy fuck they need to fix that shit, tyranny of the majority for a constitutional amendment? ) very soon regardless of what happens with the court. The polls have swung something like >60% in favor now compared to a toss up when Prop 8 passed. I doubt they'll rule on it in a way that would make other state's laws or amendments against gay marriage illegal. California was a special case where it was legal, then was taken away by Prop 8. It was never legal in other states so it's not taking away a previously held right. That's a pretty important distinction legally, and if I'm not mistaken it's how the circuit court ruled on it in the appeal as well.

DOMA affects the country in a similar way to how state marijuana dispensors in legal states can still get nailed by the feds if they feel like it. DOMA validates all those discriminatory state laws and undercuts a lot of the equality state ones. Gay married couples in states that allow it still lose out on other federal rights even if their state allows it, eg they don't get the benefits, housing, etc. if they're military or work for the federal government. Getting rid of DOMA removes a roadblock to any real discussion on the matter or future legislation both at state and federal level. DOMA is an entirely negative law so it's removal can really only be positive or neutral. Red states will continue as is and progressive states will have nothing federal impeding them.

[SGOS]

No, the court has always been like this since the start.   And that's not a bad thing either mind you.

How can partiality be a good for justice?

A: if we wanted justice to be completely impartial, we would have just replaced judges and juries with robots because,
B: there are many competing legal theories out there (some better than others) that differ on concepts in justice that are valid enough to have yet to go away, even after many centuries of democratic debate on them.
Simply put, shit isn't black and white like we sometimes wish it was.

Then why not just determine legality through the executive and legislative branches, and dispense with the court completely?

[Wheatthins]

Well, let's imagine that the issue is settled by the Court as a state's rights issue.  Wouldn't that nullify just about anything the Federal government has to say about gay marriage?  Who has the most to gain or lose in that case?

I doubt they'll rule on it in a way that would make other state's laws or amendments against gay marriage illegal. California was a special case where it was legal, then was taken away by Prop 8. It was never legal in other states so it's not taking away a previously held right. That's a pretty important distinction legally, and if I'm not mistaken it's how the circuit court ruled on it in the appeal as well.

But why waste the courts time even taking up the prop 8 case in the first place?  They could have just denied cert and had the exact same outcome.  The 9th WANTED them to do that in the first place, which is why they made their ruling narrow.

[Wheatthins]

Then why not just determine legality through the executive and legislative branches, and dispense with the court completely?

Its called that whole separation of powers thing we all get taught in civics class.

[SvZurich]

Roberts is concerned about his legacy, and his lesbian cousin is in the audience on this trial.  I expect him to side with the Dem appointed justices.

Scalia is an old school bigot who thinks his shit doesn't stink.  Expect Alito to side with Scalia against Civil Rights.

Not sure on Thomas.  Nor on Kennedy.

Might be a 5-4 of Roberts with the Dem appointments.

[BarkAtTheMoon]

pdf transcript of the Prop 8 arguments:

http://www.supremecourt.gov/oral_argume ... 2-144a.pdf

[Wheatthins]

Roberts is concerned about his legacy, and his lesbian cousin is in the audience on this trial.  I expect him to side with the Dem appointed justices.

Scalia is an old school bigot who thinks his shit doesn't stink.  Expect Alito to side with Scalia against Civil Rights.

Not sure on Thomas.  Nor on Kennedy.

Might be a 5-4 of Roberts with the Dem appointments.

Roberts is to hard for me to read just because he is still a relatively new justice and has been known to surprise people with his rulings.  He's a tossup for me.

Scalia will more than likely vote against, but he is not a biggot neocon I think.  He is a textualist who sometimes likes to bend his legal theory to his advantage sometimes when it comes to certain issues.  But ALL the justices do this from time to time, scalia just a bit more than most.  10% for 90% against, if i were a betting man.

Alito is 100% no, as ive never seen or heard of him making decisions that would lead me to believe otherwise.

Thomas is the odd one out for me, even when everyone else thinks he's a given no.(and by all means, he is much more of a conservative justice if not the most conservative one)  But I have reasons for this.
1.  In 2003 in Lawerence vs Texas, Thomas wrote a completely separate dissenting opinion on the matter and while he thought legally Texas had a right to ban gay sex, he went out of his way to point out that personally he thought the whole concept was stupid and if he had been in the legislature, he would have voted to repeal it long ago. (http://en.wikipedia.org/wiki/Lawrence_v._Texas)
2. Thomas is a black man married to a white woman, something that was illegal in the past using many of the same arguments made in court today.  The irony of this should not be lost on him.
3. When an issue before the court hits home for the man, he's much more willing to go against his general beliefs than he normally would.  See Virgina vs Black to see what I mean.
70-30 for him affirming gay marriage

Kennedy is libertarian , and a bleeding heart at that.
90-10 for him affirming gay marriage

The rest of the liberal justices, Kagen , Ginsburgh,Bryer, and Soto are a given for affirming.

If they are going to decide on the whole enchilada with Perry here, you have a 5-4 decision reasonably involving  one of the 2  more conservative justices siding with the liberals, and  Roberts being a tossup as the decider vote.  And then you have a fairly good betting odd on getting a 6-3 or even a 7-2 decision if you stretch it a bit.  And I'm willing to bet that even if none of the more conservative justices wants to affirm, at least one of them, most likely Kennedy, will just abstain leaving it a stalemate which means the 9th circuit's ruling will stand and California will still get gay marriage.

[widdershins]

I just listened to a snippet from the case and it was hopeful.

//http://www.nbcnews.com/video/nbc-news/51337266/#51337266
It's audio only.  One witness is being questioned by a couple of the justices and he is getting grilled.  Their responses invoke laughter in the court room a couple of times.