gay marriage a win in US?

[Inchante]

The question is what does the Supreme Court wish to address on a Federal scale? There were a number of points of law in the Ninth Circuit's judgement that the Supreme Court may feel best decided by themselves giving nationwide binding precedent. The Supreme Court could address these and simply ignore the question of a general right to same-sex marriage as it was not addressed in the Ninth Circuit's decision.

I stand by my prediction that if the Supreme Court hears the case it will issue a narrow ruling, which in terms of same-sex marriage won't practically apply outside of California.




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And I stand by my position that, if it does take up this case, any ruling cannot help but to effect precedent regarding same sex marriage . . . whether their ruling is narrow as the breadth of a hair or as broad as the Pacific. Though, I think based on your statement, this really comes down to a glass is half full/half empty argument.

You may want to check and see what the lawyers have said. Google, "Citizens presumptively entitled to be treated like other citizens' explains Prop 8 defeat", and watch the interview.

Oh, I did make a response to Orphanpip, but it has somehow disappeared into the margins of the GS universe. It may yet show up since I am on a "new" status. I'll wait a bit and see if it does before reposting.

[Bowyn Aerrow]

Looking at Canada as example, "regional" areas had to take a stance until a majority of the territories had it legalized already.

I think 40 US states out of 50 would have to have already legalized gay marriage before the federal government will take a real stance and pass a law legalizing it across the Union.

Politicians are generally cowards, they wait until the wind is blowing in the right direction and they love to build upon the foundations laid by others. Thus when it is advantageous for DC law makers to make a 'stance' in favor thus get all the credit for the hard work down by those lower on the ladder than them - then, and only then will it pass.

I have no doubt that during the next 20 years we will see Gay marriage across the whole USA, we will also see a woman as president of These United States, a cure for AIDs, a cure for most cancers, Men back on the moon and a mission to Mars.

[pellaz]

interracial marriage came slow and hard won to the land of the free, initially only a few states were the first. About the time the US federal government took an interest a few more states took the initiative by them selves. Finally in 1967 the federal government over rode local law and the south eastern block of hold out states allowed interracial marriage.

from what I read:
-the anit gay marriage group wants the case to to to the federal supreme court instead of staying in the local fed district court.

-A newt gingrich style interpretation thinks the US constitution dosnt really mention marriage and it should be decided by the states.

-the current argument against gay marriage was along the lines of protection of appropriation and parenting. This district federal court felt there was no connection.
I dont know if the anit marriage camp can modify their argument if the case goes to the federal supreme court?

[East]

-the anit gay marriage group wants the case to to to the federal supreme court instead of staying in the local fed district court.

Of course they do. They understand exactly what kind of Supreme Court we have in place today.

[pellaz]

do you think their previous argument is a win in whatever new court

could they modify their argument?

[ceez]

well, the 9th circuit declared prop 8 unconstitutional and Bill O'Reilly freaked. not sure where it goes from here, I hate politics so I usually just read enough to know whats going on.

http://www.huffingtonpost.com/2012/02/08...62368.html

[fredv3b]

I hope that is not the case or at least that there are other significant factors that I am unaware of, as the number and type of rights extended to the British population through precedence are significant. If they are so easily changed and interpreted, those rights are as easily lost as gained.

Technically, speaking precedence is certainly less binding than in America. However tradition is more binding. Precedence is more easily but more reluctantly broken.


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[Inchante]

from what I read:
-the anit gay marriage group wants the case to to to the federal supreme court instead of staying in the local fed district court.

-A newt gingrich style interpretation thinks the US constitution dosnt really mention marriage and it should be decided by the states.

Yes, indeed, the Constitution doesn't mention marriage, and according to the Constitution, all the rights and duties not outlined in the constitution fall to the states to decide. That is the Newt argument. However, as you mentioned above with interracial marriage, the Supreme Court has already ventured into that particular realm. It will be interesting to see how this plays out. I don't think we are going to find ourselves suddenly having gay marriage legalized throughout the U.S. in 2013, but I think there will be some significant changes.

Here is an article from the Guardian on the topic:

The ninth circuit court of appeal's ruling in Perry v Brown (pdf) that California's infamous Proposition 8 unconstitutional is certainly good news. The court's finding that the ban on same-sex marriage enacted by California's voters violates the equal protection clause of the 14th amendment has major potential implications.

Given the importance of the case and the rights and stake, the majority opinion by the liberal lion Judge Stephen Reinhardt might seem surprisingly narrow and cautiously argued. But this reflects the most important audience for Reinhardt's opinion: Justice Anthony Kennedy. Should the supreme court overrule the ninth circuit, the victory won in the lower courts would be not merely hollow, but actively counterproductive. Reinhardt's opinion seems written to maximize the chances that it will be upheld by the supreme court – and he might well succeed.

Given the near-certain votes of Justices Scalia, Thomas, Alito and Chief Justice Roberts to uphold Proposition 8, as with so many others, this case is likely to come down to Justice Kennedy's vote. And while generally Kennedy is an ally of the aforementioned group of conservative Republican appointees, on issues pertaining to gay and lesbian rights, there is some reason for optimism.

When he was nominated for the supreme court by Ronald Reagan, after the Senate rejected Robert Bork, some conservatives objected to Kennedy based on his perceived sympathy to civil rights for gays and lesbians. These objections, fortunately for the country, were well-founded. In Lawrence v Texas, Kennedy authored the opinion for the court overruling the infamous Bowers v Hardwick, which had upheld a Georgia law banning "sodomy" in language rife with contempt for gays and lesbians and their rights. And even before Bowers had been overruled, Kennedy's opinion in Romer v Evans struck down a Colorado initiative that prevented any state institution or agency from providing civil rights protection to gays and lesbians.

Shrewdly, Reinhardt's opinion repeatedly cites Romer and argues that the case presents similar constitutional questions. "Proposition 8," argues Reinhardt, "is remarkably similar to amendment 2" (the Colorado initiative Kennedy held unconstitutional). Kennedy had argued in Romer that amendment 2 was constitutionally invalid because it "withdraws from homosexuals, but no others, specific legal protection". Proposition 8, Reinhardt notes, has the same key characteristic, singling out gays and lesbians for a particular legal disadvantage.

In particular, Reinhardt focuses on two key elements of Proposition 8: the fact that an existing right was taken away, and the fact that same-sex partnerships were legally identical to opposite-sex ones, except that the nomenclature of "marriage" could not be applied to the former. Both of these facts make Proposition 8 analogous to the invidious, irrational discrimination Kennedy held to be unconstitutional in Romer. Denying the term "marriage" to otherwise legally equivalent partnerships can only be justified in order to stigmatize the same-sex relationships. This cannot be consistent with the equal protection of the laws, and the fact that a right was taken away aggravates the effects of the discrimination.

And the fact that only the name "marriage" was denied to same-sex partnerships does not make the exclusion trivial. The term has unique connotations and meaning, and denying it to some citizens in otherwise equal relationships represents the kind of exclusion the 14th amendment was designed to prohibit.

In addition to citing Kennedy's landmark opinion repeatedly, Reinhardt's repeated citing of Romer demonstrates that the court can hold Proposition 8 unconstitutional without radically changing equal protection law. The California initiative, Reinhardt correctly notes, "has no apparent purpose but to impose on gays and lesbians … a majority's private disapproval of them and their relationships." This kind of animus cannot be said to be rationally related to any legitimate state interest. Hence, Proposition 8 is invalid even if one assumes (as the supreme court currently does) that classifications do not require "strict scrutiny" in the way that classifications based on race do. Particularly on such highly visible issues, the court is always more likely to favor a right if it is not required to create new doctrine to do so.

Admittedly, Reinhardt's argument against Proposition 8's constitutionality is not without its downsides. Because of the narrow focus on the specific facts of the California case, if the supreme court were to adopt the reasoning of the ninth circuit, the national implications of the ruling would be unclear. It's likely that lower courts would not immediately interpret such a holding as creating a right to same-sex marriage.

Reinhardt's logic, if the supreme court agrees, might restore same-sex marriage rights in Maine – where they were also taken away by an initiative – but lower courts may be reluctant to apply the right to different contexts. A ruling holding that classifications based on sexual orientation should be subject to strict scrutiny, and that the denial of the fundamental right to marriage cannot possibly survive such scrutiny, would be preferable and more consistent with the values of the US constitution – if it were possible.

Still, Reinhardt's decision to go for a solid base hit rather than a home run represents a sound instinct. Kennedy is much more likely to uphold the ninth circuit if he believes such a ruling to be consistent with his own precedents. Forced to choose between a broad, immediate national right to same-sex marriage and upholding Proposition 8, Kennedy is quite likely to choose the latter. Creating a Bowers-like bad precedent would be a disaster, making it much more difficult to successfully litigate in the future – and also, possibly, allowing states to impose more disabilities on same-sex partnerships.

A ruling that immediately gave California's 37 million residents the right to same-sex marriage and creates a precedent that would likely expand that right to many other, if not all states in the future would still be a major victory. We have to hope that Judge Reinhardt has read Justice Kennedy correctly.

[ceez]

wohoo!! Washington legalized same sex marriage. that's 8 down 42 to go

[Bowyn Aerrow]

wohoo!! Washington legalized same sex marriage. that's 8 down 42 to go

Well lets see there are between 50 and 57 states of the USA (Obama blooper) - so that is between 42-49 states. :tongue:

Every hear of the Scientific Humanitarian Committee? From the 1890's to the mid 1930's when Hitler brought down the hammer, there was a real political 'gay rights' movement in Germany. The Scientific Humanitarian Committee was that 'movement'.

Granted they didn't reach the level of granting gay marriage, but a lot of the old traditional laws were being over turned and 'homosexuality' was enjoying a moment of 'freedom' to the point that where in 1935 when the Paragraph 175 was invoked it was real easy to round up the known homosexuals - because they had enjoyed such freedoms as to not stay in the closet.

The USA is in a position much like Germany. We have had a Reichstag Fire (9-11-2001) that has lead to an Enabling Act (Patriot Acts I and II), Gestapo (Homeland Security) and a tightening of rights and freedoms up and down the spectrum.

I view open gay marriage as a two edged sword. We now have states that are making it possible for LGBT to line up and willfully admit to the state that they are LGBT, register, and keep that data with the state updated as to their location and all of that via taxes filing jointly reminding the state 'We are Gay, we are here'.

We are only a few very short steps from an open, free, liberated society (which is only a partial truth already) to a dictatorship. If, perhaps when, a Dictator rises to the office of the Presidency, I have to worry about our legal rights being used against us in another 'purification'.