Smart, moderate, non-bigot and/or sane republicans already get that the battle is lost. The problem is they seem to be loosing their ability to keep things like the tea party and fundamentalist religious wing in check. Those two groups aren't going to shut up about the issue after the SCOTUS ruling, they'll just be screaming louder about activist judges, tradition and people being intolerant of their intolerance. I mean, it was clear it was a loosing issue in 2012 but that didn't stop most of the awful people on the right, who were running in VA's state elections in 2013, from using it as a wedge issue in an overt manner, instead of trying to dog whistle it. They weren't the only ones and VA wasn't the only place where that kind of bigotry is practiced openly by people gunning for public office.
Trust me, this issue won't be settled by the court. We'll get a couple years of awful clown shows that will really alienate some that are still in the GOP. The problem here is that we're dealing with people who have awful religious beliefs, that they build their identity around. You're not just asking someone to admit they are wrong. You're asking someone to admit that they are being a shitty, awful human being to their fellow humans. This get's even worse because not only do they not want to admit they are fucking awful human being, but they'll retort with "I can't be wrong because god says it's okay!"
Supreme court decision won't settle this. It just makes it so that any shitty laws enacted to screw over homosexuals will be struck down.
And that is where I simply just fundamentally disagree. I expect things to pretty much follow the path of Loving and other late term civil rights victories. Lots of rendered garments when it happens, promises of some vaguely threateningly sort followed by nothing but dog whistles and direct mail fundraising. Ultimately we'll just have to wait the few years out to see who is right, but given the pace of public opinion I will be rather surprised to see anything more blatant than a gay 'hands' ad or something similar.
Why would it be different from Roe v Wade?
Because the question of whether two dudes should be allowed to marry each other isn't an ultimately unsolvable question of the fundamental basis of life itself.
I'm not sure why you think this is relevant to what will be a political issue.
And I don't understand how you can consider it immaterial. The kinds of questions being asked change the way those questions can be discussed, and that has a significant impact on the political nature of any of those discussions.
What are you basing this assertion on? When has it made a difference before?
Only 10 years ago this was a rallying cry across the US for the GOP and it was just as much not an "unsolvable question of the fundamental basis of life itself" back then.
Nobody is going to want to talk about this by the 2016 general beyond some very local level officials. Especially after nothing happens. For the same reason that the ACA has hardly been mentioned in most campaign ads this go 'round. The Supreme Court is going to make their ruling and that will be the end of it aside from the gnashing of teeth. And you can only gnash your teeth for so long until its just gums.
So far the only rebuttals with any backing beyond lolpublicans seem to be based on this being a uniquely religious issue and religious issues tend to be sticky (which I would agree to, but I consider the white supremacy and anti-miscegenation feelings preceding Loving to have also been religious and fall prey to the same dynamics. There will undoubtedly be some dog whistle attacks under the rubric of 'freedom of religion' that somehow reference anti-gay marriage stuff.) and that the GOP is worse at dog whistling now than it used to be in part because it has fully embraced the Southern Strategy and is more homogeneous than it was when Loving came down and they just started trying to pick up Dixiecrats. I'd say that last one holds some weight, but mostly because the people plucked from the farm league to go the major's have been pretty damn awful. That isn't necessarily going to stop being the case in the next few cycles, but that's also a more general problem rather than one specific to gay marriage. The elderly gentleman who is going to say something stupid in his campaign after the ruling comes down is also likely going to say something stupid about rape and brown people along the way as well. But a couple cycles further on I doubt the issue will even come up simply because it will no longer be an issue that can reasonably be addressed. ENDA may well bring about a bunch more idiocy, and legalized gay marriage could well be dragged along for the ride, but given the changes in public opinion I really do expect people to bite the party line of shutting the hell up about it.
And yet the numbers were almost as good last election and it was still an issue.
I think there will be some new hot issues for people to derp about. Religious freedom/Birth control, equal pay, sexual assault on campuses (or in general, man people can't stop opening their mouths stupidly on that topic).
I do think the doubling down is gonna happen on those things, not gay marriage.
Smart, moderate, non-bigot and/or sane republicans already get that the battle is lost. The problem is they seem to be loosing their ability to keep things like the tea party and fundamentalist religious wing in check. Those two groups aren't going to shut up about the issue after the SCOTUS ruling, they'll just be screaming louder about activist judges, tradition and people being intolerant of their intolerance. I mean, it was clear it was a loosing issue in 2012 but that didn't stop most of the awful people on the right, who were running in VA's state elections in 2013, from using it as a wedge issue in an overt manner, instead of trying to dog whistle it. They weren't the only ones and VA wasn't the only place where that kind of bigotry is practiced openly by people gunning for public office.
Trust me, this issue won't be settled by the court. We'll get a couple years of awful clown shows that will really alienate some that are still in the GOP. The problem here is that we're dealing with people who have awful religious beliefs, that they build their identity around. You're not just asking someone to admit they are wrong. You're asking someone to admit that they are being a shitty, awful human being to their fellow humans. This get's even worse because not only do they not want to admit they are fucking awful human being, but they'll retort with "I can't be wrong because god says it's okay!"
Supreme court decision won't settle this. It just makes it so that any shitty laws enacted to screw over homosexuals will be struck down.
And that is where I simply just fundamentally disagree. I expect things to pretty much follow the path of Loving and other late term civil rights victories. Lots of rendered garments when it happens, promises of some vaguely threateningly sort followed by nothing but dog whistles and direct mail fundraising. Ultimately we'll just have to wait the few years out to see who is right, but given the pace of public opinion I will be rather surprised to see anything more blatant than a gay 'hands' ad or something similar.
Why would it be different from Roe v Wade?
Because the question of whether two dudes should be allowed to marry each other isn't an ultimately unsolvable question of the fundamental basis of life itself.
I'm not sure why you think this is relevant to what will be a political issue.
And I don't understand how you can consider it immaterial. The kinds of questions being asked change the way those questions can be discussed, and that has a significant impact on the political nature of any of those discussions.
What are you basing this assertion on? When has it made a difference before?
Only 10 years ago this was a rallying cry across the US for the GOP and it was just as much not an "unsolvable question of the fundamental basis of life itself" back then.
Which is why the numbers have changed rather than held steady in a narrow (though volatile) band like is the case with abortion. Philosophical questions persist, tangible questions get resolved. There may be a few centuries and battlefields involved before the consensus fully forms, but they get resolved.
In order to turn something into 'an issue' which can actually see success (rather than just making it a cross for their candidates to have to struggle through) you HAVE to be able to frame the debate in a way which can garner the support of a random middle age middle class white woman. Up until recently, that woman in regards to gay marriage was thinking "Well, I don't really think gay people exist, and I certainly don't want my son to become one if they do. So I'll oppose gay marriage. I don't hate gay people, I just think my personal comfort is more important". That person had a similar attitude about abortion before Roe v Wade, or about interacial marriage before Loving. Without that person, who doesn't HATE the people you are trying to hold back, but also doesn't really care about them or has some personal false reason to hold them back (what if a gay couple moved next door!) then the bigots can't win.
That random person no longer thinks that about gay people. In fact, when you ask that random person about gay people they are very positive about them. We'll be moving back to abortions and religious 'freedoms' in school or something like that for the next cycle of idiocy. Since our random woman thinks that women who need abortions probably are a bit slutty, and that really she doesn't want her kids hanging out with too many Muslim kids who act all weird and whose parents decorated number 365 with all those odd rugs.
Honestly, the right was MUCH angrier about inter-racial marriage at the time. But the problem they have trying to bring that back is that everyone loves it, and there are far too many highly visible couples all over. The same will happen with gay marriage. It's public and visible. Once it gets started, you can't pretend it's not happening (like you can with abortions)
edit - Hell, I'm ashamed to admit it. I was one of those people on the wrong side of the gay marriage issue 8 years ago. I argued a whole lot of nonsense about the 'purpose' of marriage being to incentivize childbirth here on these very forums. You can look it up in my history. If you feel like digging through posts from 8 years ago. I had my false reasons, and poorly thought out issues that it would bring up. I didn't have a problem with gay people in civil unions, I just didn't realize how much that actually was HURTING people to not be viewed as normal and the same by society. You don't win the issue by breaking down the people who are doing the hating. You win the issue when people who are rationalizing their view realize there is nothing to be concerned about.
God damnit 5th circuit. Why must you always be so shitty? I wouldn't hope for much better results on appeals. The fifth circuit just loves fucking with women and minorities from what I have seen.
Doesn't “Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental.” imply that fundamental human rights are based on their popular support, which is contrary to the notion of what a fundamental human right is, that it should not be dependent on public opinion?
"But until recent years, [same-sex marriage] had no place at all in this nation's history and tradition. ... any right to same-sex marriage is not so entrenched as to be fundamental," also seems to imply rule by tradition, that anything that has existed is right to exist, and anything that has not existed can only be granted weight by public opinion. I can see how this may be politically or rhetorically tractionable, but this doesn't meet with my understanding of how legal systems function.
If marriage is a fundamental right, doesn't the judge sort of have a point that it could not be denied to other pairings that might currently be illegal? I'm usually not receptive to such arguments - oh, cuz then people could marry a turtle! - but it does turn a bit if the positioning is that marriage is a fundamental right, no? Wouldn't such a right, then, trump, say, laws banning incest? Or am I falling into the trap that they're laying out for me?
Doesn't “Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental.” imply that fundamental human rights are based on their popular support, which is contrary to the notion of what a fundamental human right is, that it should not be dependent on public opinion?
"But until recent years, [same-sex marriage] had no place at all in this nation's history and tradition. ... any right to same-sex marriage is not so entrenched as to be fundamental," also seems to imply rule by tradition, that anything that has existed is right to exist, and anything that has not existed can only be granted weight by public opinion. I can see how this may be politically or rhetorically tractionable, but this doesn't meet with my understanding of how legal systems function.
If marriage is a fundamental right, doesn't the judge sort of have a point that it could not be denied to other pairings that might currently be illegal? I'm usually not receptive to such arguments - oh, cuz then people could marry a turtle! - but it does turn a bit if the positioning is that marriage is a fundamental right, no? Wouldn't such a right, then, trump, say, laws banning incest? Or am I falling into the trap that they're laying out for me?
The audio of the wisconsin oral arguments tears into the tradition angle, and also the "allows incest" angle. Lemme see if I can dig it up for you.
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AstaerethIn the belly of the beastRegistered Userregular
[*] If marriage is a fundamental right, doesn't the judge sort of have a point that it could not be denied to other pairings that might currently be illegal? I'm usually not receptive to such arguments - oh, cuz then people could marry a turtle! - but it does turn a bit if the positioning is that marriage is a fundamental right, no? Wouldn't such a right, then, trump, say, laws banning incest? Or am I falling into the trap that they're laying out for me?
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Marriage is not a fundamental right, but due process is. The government could decide to abolish marriage as a legal status and they'd be fine as far as the Constitution is concerned. What they can't do is offer marriage to some people but not to others on a discriminatory basis without a good reason.
1. It's really, really conservative.
2. You would think.
3. It's how conservative jurists think.
4. Lots of reasons to ban incest. Notably, those relationships are usually abusive, which the state has an interest in stopping. The formulation, more properly stated, is something like "Marriage between two consenting adults is a fundamental right." That knocks out most (all?) of your ridiculous hyperbolic comparisons. Consent, yo.
Self-righteousness is incompatible with coalition building.
[*] If marriage is a fundamental right, doesn't the judge sort of have a point that it could not be denied to other pairings that might currently be illegal? I'm usually not receptive to such arguments - oh, cuz then people could marry a turtle! - but it does turn a bit if the positioning is that marriage is a fundamental right, no? Wouldn't such a right, then, trump, say, laws banning incest? Or am I falling into the trap that they're laying out for me?
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Marriage is not a fundamental right, but due process is. The government could decide to abolish marriage as a legal status and they'd be fine as far as the Constitution is concerned. What they can't do is offer marriage to some people but not to others on a discriminatory basis without a good reason.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
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AstaerethIn the belly of the beastRegistered Userregular
[*] If marriage is a fundamental right, doesn't the judge sort of have a point that it could not be denied to other pairings that might currently be illegal? I'm usually not receptive to such arguments - oh, cuz then people could marry a turtle! - but it does turn a bit if the positioning is that marriage is a fundamental right, no? Wouldn't such a right, then, trump, say, laws banning incest? Or am I falling into the trap that they're laying out for me?
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Marriage is not a fundamental right, but due process is. The government could decide to abolish marriage as a legal status and they'd be fine as far as the Constitution is concerned. What they can't do is offer marriage to some people but not to others on a discriminatory basis without a good reason.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
It's possible I'm wrong on the law when it comes to marriage being a right, but I don't think marriage should be a right. Chief Justice Warren and I do agree, though, that if it is offered by the state, it should be offered equitably and not denied on the basis of race and other, similar factors.
4. Lots of reasons to ban incest. Notably, those relationships are usually abusive, which the state has an interest in stopping. The formulation, more properly stated, is something like "Marriage between two consenting adults is a fundamental right." That knocks out most (all?) of your ridiculous hyperbolic comparisons. Consent, yo.
No no, that's sensible. I'm just wondering how the argument for was presented. I don't know, obviously, where the "fundamental right" argument came from to appear in the judgement.
I don't fully... grasp the cultural weight of marriage. There's a part where the justice talks about how reducing marriage to just contract law - which would produce the consenting adults requirement - would be bad, and I'm like, that's sounds a-OK to me! But clearly some people view it as more than that.
It doesn't quite knock out like... adult siblings or something like that. Or polygamy. And maybe that's why people don't want to reduce marriage to contract law, because that'd be the slippery slope to polygamous marriages, etc..
First Federal Judge to uphold a marriage ban as constitutional.
Nonetheless, Feldman concluded first that no “fundamental right” was at stake — “Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental.” — and that laws that distinguish based on sexual orientation are not subjected to heightened scrutiny. As such, only the lowest level of scrutiny — rational basis review — applied to the ban, meaning the state needed only to show a legitimate reason for barring same-sex couples from marrying.
With that, he examined the reasons the state gave for the ban and concluded that they “offer a credible, and convincing, rational basis” for the ban.
Specifically, Feldman wrote:
This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.
Despite the decision he authored, Feldman noted that “many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many.”
And speaking of the 5th Circuit...
An appeal of the case would go to the 5th Circuit Court of Appeals, which has proceeded with another marriage case — out of Texas — more slowly than other circuits have done.
This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.
Hasn't this line of thinking been shown to have no basis in fact?
Something people tend to overlook, or ignore, is that the Federal government really is quite Federal rather than National/Unitary in a whole bunch of respects. Even when that is not necessarily the case in law or statute it tends to be the case from tradition and procedural norms. Among those norms is that while Federal judges go before the whole Senate for their appointment, the Senate (and especially the Senate Judiciary Committee) defers to the feelings of the Senators whose States the judge will reside in. (Also, US Attorneys. Which is more problematic for corruption reasons.) Republicans have recently decided to be more bastardly about blue slips, (Republican Presidents just require one blue slip approval, Democratic Presidents require both blue slips whereas Leahy has universally required both) but, regardless of that, it is a procedural means of having regions be more self referential rather than being more nationally representative; even though there's nothing that requires this be the case.
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ChanusHarbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered Userregular
This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.
Hasn't this line of thinking been shown to have no basis in fact?
I think it's been shown that a child having any two parents who are together is statistically the best way and it doesn't matter if they're of opposite genders
or if one's a toaster and the other is a firetruck
as long as they're a coherent family unit that shares responsibility in raising the child
More evidence that Nino is an amoral hack has surfaced:
Those who believe that we don’t execute the undeserving in America—or who aren’t too concerned about that possibility anyhow—have an ally in Justice Antonin Scalia. He famously insisted in Kansas v. Marsh that “"it should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”
That same Scalia, in an unrelated case before the Supreme Court 20 years ago, name-checked McCollum as the reason to continue to impose the death penalty. In that case, Callins v. Collins, Justice Harry Blackmun famously announced in dissent that he would no longer “tinker with the machinery of death” and would never again vote for the death penalty in any case. As Blackmun put it at the time: “The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.” In response, Scalia questioned why Blackmun hadn’t chosen a more grisly murder to make this announcement, specifically citing McCollum’s case as the more appropriate vehicle to announce that position. Scalia noted that all sorts of cases of truly horrendous murders came before the court, “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable,” he wrote, “a quiet death by lethal injection compared with that!” Never mind that “quiet death by lethal injection” has little to do with how our executions are carried out these days.
When McCollum’s own case came before the high court, Scalia voted not to hear it. Blackmun again wrote a dissent from that decision, again chastising Scalia for failing to understand the stakes: “Buddy McCollum is mentally retarded,” he explained. “He has an IQ between 60 and 69 and the mental age of a 9-year old. He reads on a second grade level. This factor alone persuades me that the death penalty in his case is unconstitutional.” Interestingly, Blackmun never seems to have doubted McCollum’s guilt. He simply believed the man was mentally unfit for execution. What a difference a few decades of DNA exonerations make!
It is extremely conservative. It has let me down many, many times. See how they are completely dragging ass on the Texas marriage law. See also their recent ruling on the Texas abortion laws.
This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.
Hasn't this line of thinking been shown to have no basis in fact?
I think it's been shown that a child having any two parents who are together is statistically the best way and it doesn't matter if they're of opposite genders
or if one's a toaster and the other is a firetruck
as long as their a coherent family unit that shares responsibility in raising the child
More to the point, the state does not prohibit single parenting. It does not prohibit marriages between infertile couples. It does not dissolve marriages if a partner becomes infertile. It does not prohibit divorce if a couple has children. It allows adoptions. In short, a couple's children or lack thereof have almost no bearing on marriage, and exactly zero on whether they can get married.
Every single one of those things is contrary to the logic the judge expressed. This is why other courts have demolished that argument.
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ChanusHarbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered Userregular
This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents, as specifically underscored by Justice Kennedy in Windsor.
Hasn't this line of thinking been shown to have no basis in fact?
I think it's been shown that a child having any two parents who are together is statistically the best way and it doesn't matter if they're of opposite genders
or if one's a toaster and the other is a firetruck
as long as their a coherent family unit that shares responsibility in raising the child
More to the point, the state does not prohibit single parenting. It does not prohibit marriages between infertile couples. It does not dissolve marriages if a partner becomes infertile. It does not prohibit divorce if a couple has children. It allows adoptions. In short, a couple's children or lack thereof have almost no bearing on marriage, and exactly zero on whether they can get married.
Every single one of those things is contrary to the logic the judge expressed. This is why other courts have demolished that argument.
In the Wisconsin case, it was mentioned that a bordering state (I forget which) allows incestuous marriage if the couple can demonstrate with only a note from a doctor that they won't conceive a child. Also, the justices took issue with this idea based on the fact that wisconsin hasn't taken more obvious and impactful remedies for the increase in unwed mothers, suggesting that "marriage should be for procreation" is just a fig leaf.
So, in news that surprises nobody save those folks at Gene's corner of the internet, the DC Court has accepted Halbig for en banc review, vacating the earlier asinine decision.
No more circuit split. No more fig leaf for Roberts. He wants to go for it, it's on his head.
Oh boy, we're talking about the Louisiana ruling here? Here's my favorite part: "Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race." Here's the 14th amendment. Spot the "express" and "specific" mention of race:
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Second favorite is: "What about a transgender spouse? Is such a union same-gender or male-female"?
Well, judge, I think the position of the marriage equality crowd is that it doesn't fucking matter. Why would he even ask that, except if only to get a jab at those kooky trannies with their breasts and their penises?
To be fair, the way the 14th amendment is taught in America is criminally negligent in that it's presented entirely as a race based amendment and did nothing more than grant blacks, and ONLY blacks, equal protection.
But, to be extra fair to all involved, this is a judge we are talking about and should know better.
KalTorakOne way or another, they all end up inthe Undercity.Registered Userregular
Posner has some awesome tidbits in that opinion. E.g. re the "straight people need marriage all to themselves because only they have unplanned children" argument:
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Also
Posner also took both states to task for arguing that the ban on same-sex marriage was a part of the democratic process despite the fact that “homosexuals are politically powerful out of proportion to their numbers.”
“It is to the credit of American voters that they do not support only laws that are in their palpable self-interest,” Posner wrote. “They support laws punishing cruelty to animals, even though not a single animal has a vote.”
Bullshit arguments getting slapped left and right.
I've been reading through the opinion and it's just solid gold from start to finish. A few more items:
Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: “you can have domestic partnerships that create the identical rights and obligations of marriage, but you can them only 'civil unions' or 'domestic partnerships.' The term 'marriage' is reserved for same-race unions.” This would give interracial couples much more than Wisconsin's domestic partnership statute gives same-sex couples. Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.
Wisconsin's remaining argument is that the ban on same-sex marriage is the outcome of a democratic process – the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state's population – 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
Before ending this long opinion... Wisconsin's complaint about the wording of the injunction entered by the district judge. Its lawyers claim to fear the state's being held in contempt because it doesn't know what measures would satisfy the injunction's command that all relevant state officials “treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” If the state's lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven't.) Better yet, they should draw up a plan of compliance and submit it to the judge for approval.
American judgments are much less formally written than judgments here in Australia. Both have their pros and cons.
One of the big pros for your way of doing things is that when a judge is mad at some bullshit they can just fill their judgment in bile and passive aggression. It makes for better reading material.
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What are you basing this assertion on? When has it made a difference before?
Only 10 years ago this was a rallying cry across the US for the GOP and it was just as much not an "unsolvable question of the fundamental basis of life itself" back then.
And yet the numbers were almost as good last election and it was still an issue.
I do think the doubling down is gonna happen on those things, not gay marriage.
IIRC the last time the case came up this was explicitly mentioned in their ruling wasn't it?
Which is why the numbers have changed rather than held steady in a narrow (though volatile) band like is the case with abortion. Philosophical questions persist, tangible questions get resolved. There may be a few centuries and battlefields involved before the consensus fully forms, but they get resolved.
That random person no longer thinks that about gay people. In fact, when you ask that random person about gay people they are very positive about them. We'll be moving back to abortions and religious 'freedoms' in school or something like that for the next cycle of idiocy. Since our random woman thinks that women who need abortions probably are a bit slutty, and that really she doesn't want her kids hanging out with too many Muslim kids who act all weird and whose parents decorated number 365 with all those odd rugs.
Honestly, the right was MUCH angrier about inter-racial marriage at the time. But the problem they have trying to bring that back is that everyone loves it, and there are far too many highly visible couples all over. The same will happen with gay marriage. It's public and visible. Once it gets started, you can't pretend it's not happening (like you can with abortions)
edit - Hell, I'm ashamed to admit it. I was one of those people on the wrong side of the gay marriage issue 8 years ago. I argued a whole lot of nonsense about the 'purpose' of marriage being to incentivize childbirth here on these very forums. You can look it up in my history. If you feel like digging through posts from 8 years ago. I had my false reasons, and poorly thought out issues that it would bring up. I didn't have a problem with gay people in civil unions, I just didn't realize how much that actually was HURTING people to not be viewed as normal and the same by society. You don't win the issue by breaking down the people who are doing the hating. You win the issue when people who are rationalizing their view realize there is nothing to be concerned about.
Not at the appeals level yet but it is sure to get there.
The audio of the wisconsin oral arguments tears into the tradition angle, and also the "allows incest" angle. Lemme see if I can dig it up for you.
Marriage is not a fundamental right, but due process is. The government could decide to abolish marriage as a legal status and they'd be fine as far as the Constitution is concerned. What they can't do is offer marriage to some people but not to others on a discriminatory basis without a good reason.
2. You would think.
3. It's how conservative jurists think.
4. Lots of reasons to ban incest. Notably, those relationships are usually abusive, which the state has an interest in stopping. The formulation, more properly stated, is something like "Marriage between two consenting adults is a fundamental right." That knocks out most (all?) of your ridiculous hyperbolic comparisons. Consent, yo.
It's possible I'm wrong on the law when it comes to marriage being a right, but I don't think marriage should be a right. Chief Justice Warren and I do agree, though, that if it is offered by the state, it should be offered equitably and not denied on the basis of race and other, similar factors.
No no, that's sensible. I'm just wondering how the argument for was presented. I don't know, obviously, where the "fundamental right" argument came from to appear in the judgement.
I don't fully... grasp the cultural weight of marriage. There's a part where the justice talks about how reducing marriage to just contract law - which would produce the consenting adults requirement - would be bad, and I'm like, that's sounds a-OK to me! But clearly some people view it as more than that.
It doesn't quite knock out like... adult siblings or something like that. Or polygamy. And maybe that's why people don't want to reduce marriage to contract law, because that'd be the slippery slope to polygamous marriages, etc..
First Federal Judge to uphold a marriage ban as constitutional.
And speaking of the 5th Circuit...
Hasn't this line of thinking been shown to have no basis in fact?
Something people tend to overlook, or ignore, is that the Federal government really is quite Federal rather than National/Unitary in a whole bunch of respects. Even when that is not necessarily the case in law or statute it tends to be the case from tradition and procedural norms. Among those norms is that while Federal judges go before the whole Senate for their appointment, the Senate (and especially the Senate Judiciary Committee) defers to the feelings of the Senators whose States the judge will reside in. (Also, US Attorneys. Which is more problematic for corruption reasons.) Republicans have recently decided to be more bastardly about blue slips, (Republican Presidents just require one blue slip approval, Democratic Presidents require both blue slips whereas Leahy has universally required both) but, regardless of that, it is a procedural means of having regions be more self referential rather than being more nationally representative; even though there's nothing that requires this be the case.
I think it's been shown that a child having any two parents who are together is statistically the best way and it doesn't matter if they're of opposite genders
or if one's a toaster and the other is a firetruck
as long as they're a coherent family unit that shares responsibility in raising the child
It is extremely conservative. It has let me down many, many times. See how they are completely dragging ass on the Texas marriage law. See also their recent ruling on the Texas abortion laws.
More to the point, the state does not prohibit single parenting. It does not prohibit marriages between infertile couples. It does not dissolve marriages if a partner becomes infertile. It does not prohibit divorce if a couple has children. It allows adoptions. In short, a couple's children or lack thereof have almost no bearing on marriage, and exactly zero on whether they can get married.
Every single one of those things is contrary to the logic the judge expressed. This is why other courts have demolished that argument.
In the Wisconsin case, it was mentioned that a bordering state (I forget which) allows incestuous marriage if the couple can demonstrate with only a note from a doctor that they won't conceive a child. Also, the justices took issue with this idea based on the fact that wisconsin hasn't taken more obvious and impactful remedies for the increase in unwed mothers, suggesting that "marriage should be for procreation" is just a fig leaf.
No more circuit split. No more fig leaf for Roberts. He wants to go for it, it's on his head.
Something possibly in store for SCOTUS in the future
In more ways than I realized. It turns out he went "But if we allow this we have to allow transgender marriages!"
...which you know, EVERYONE ALREADY DOES.
Second favorite is: "What about a transgender spouse? Is such a union same-gender or male-female"?
Well, judge, I think the position of the marriage equality crowd is that it doesn't fucking matter. Why would he even ask that, except if only to get a jab at those kooky trannies with their breasts and their penises?
But, to be extra fair to all involved, this is a judge we are talking about and should know better.
Text here. Posner wrote it, as I believe most expected.
Also
Bullshit arguments getting slapped left and right.
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Oh my god.
I want to send this judge a gift basket.
That's not an actual quote from the opinion.
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One of the big pros for your way of doing things is that when a judge is mad at some bullshit they can just fill their judgment in bile and passive aggression. It makes for better reading material.
hAmmONd IsnT A mAin TAnk