The Glade 4.0

Again everyone has a access (I'm not sure marriage is a right) to marriage as marriage has been defined.

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I prefer to think of them as "Fighting evil in another dimension"

Scalia effectively accused the majority justices of straight-up judicial activism and a gross over-reach of power.

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So why should same sex marriage be unavailable to people?

If it is the bullshit excuse that Marriage is between a man and a woman because they procreate and have children.

My problem with this line of thinking kind of goes along the following rail: What about when people are unable to conceive? Like when either of the people happens to be infertile, etc. And what about older couples who are beyond child bearing age? Would we, as a country, be able to legally force all married couples who are still abl;e to bear children to breed, even if they do not desire to do so? Or what about having extra children for the couples that cannot have children of their own?

Well if we can deny two men or two women the ability to marry, because they are not able to breed together... well then **** it, let's deny anyone who would be unable to procreate the ability to marry those they love. Straight, gay, Trans, Pan, etc. Like the 80 year old lady who my friend just walked down the aisle on her second marriage (to a gentleman who is 85 years old), or let's require fertility testing of all the people who do apply for marriage licenses; If you cannot have a child... then **** you, stay single. Got a vasectomy or got your tubes tied... **** you your marriage is dissolved. So if you are not going to try and mandate that all straight couples procreate… you are then just pulling crap out of your rear in regards to the excuse above.

Now if your excuse is that it violates the Sanctity of Marriage; then you are falling to the religion viewpoint then, which we have a Constitutional Protection from. Besides, anyone who has committed Adultery has already violated the Sanctity of Marriage. Or would people who feel it violates the Sanctity of Marriage prefer us to start bringing back stoning of adulterers or stoning those who marry after a loved one dies, or even of stoning those who would get a divorce?

I am glad DOMA was judged to be unconstitutional.

Coincidentally, I also agree with what Fox said about the likelihood that it will be challenged. Because stupid is stupid, regardless of sexual preferences.

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Darksiege
Traveller, Calé, Whisperer
Lead me not into temptation; for I know a shortcut

People like to act like the institution of marriage is linked to [their] religion and its teachings.

Scalia's argument has nothing to do with the morality of the situation. His dissent is clinical, legally precise, and significantly more accurate than the majority opinion. That's rather indisputable, particularly given the ambivalence and flimsiness of Kennedy's claim to jurisdiction (it doesn't exist). What happened in our Supreme Court, and it has happened before -- most notoriously Roe v.Wade, is that politics trumped the Rule of Law.

I think "gay marriage"should be legal insofar as ANY marriage is legal and recognized. What I don't support, and Scalia obviously doesn't support, is the legal gymnastics required for the Court to rule on something for which no claim of jurisdiction could be made.

In fact, using the Courts to make this change at all cannot work, if we are to respect how our various States and Constitutions and Compacts and Charters are supposed to work. Allowing the Court to grasp so far, as Scalia noted, creates a greater threat to personal liberty than the ability of a population to choose its definitions. Proposition 8 passed by vote.

The people of the United States have to change, and the force of law is not the Rule of Law in the United States.

Likewise, we need a real Full Faith and Credit Challenge to DOMA; and the Definitions Act. Scalia might tear apart the majority decision, but he also lays the legal groundwork for how to get rid of DOMA right and put this issue back on the People and States, which is where it belongs. Don't get me wrong, the government needs to get out of marriage entirely; and everyone is free to love, marry, live with, shack up with, whatever with whoever they choose (consenting adults and standard stuff here).

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Again, this. The gay community does have jerks, and as hard as it might be to imagine, some of them would, if allowed, insist that a Catholic or other church that objected to gay marriage perform a ceremony for them just ebcause they could.. and that would be oppression. Thankfully, it's not going to happen (like most of the other imaginary oppression). There are all kinds of douchebags in the LGBTPAWTFPWNZORS community, most of whom are immature young people looking for something to be mad about. They're easy to find; just look for a bisexual who is monogamous with the opposite sex and watch the douchebagfest that results.

That doesn't change that its a good, Constitutional decision.

Also, Shipley's is down here too, and their donuts are fantastic.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Can two non-gay men or non-lesbian women get 'married' to each other?

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

Yes, under this ruling proof of sexuality is not a requirement for marriage. I see it happening in the future between friends over things like medical insurance benefits and older adult housing issues.

Does this mean love is not there? No, it means exploitation of a loophole is possible.

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The U. S. Constitution doesn't guarantee happiness, only the pursuit of it. You have to catch up with it yourself. B. Franklin

"A mind needs books like a sword needs a whetstone." -- Tyrion Lannister, A Game of Thrones

In that case I see it happening for a lot more than that. If I weren't already married, I'd sign a pre-nup and pick a friend to get married to for tax benefits. Divorce when I was ready to settle down "for real."

I foresee this being a relatively hilarious downstream consequence.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

The concept of marriage as we know it is dead (and I think I'm just fine with that, as long as the government removes itself from the process).

Depends on what state. This is the fundamental issue that has been ignored the entire time. No one can marry the same sex, and as such the law is fundamentally equal. There are all sorts of arguments in favor of gay marriage, but the 14th amendment is not one of them.

That's one of the big issues with advocating for it right now. Too many people want it to be a court decision that makes gay marriage the norm in one fell swoop, simply to rub people's nose in it and make it easier in general, and tell people they don't like that their views are unConstitutional.

If we want to have federalism, we need to let states decide issues like this, even if they make asinine decisions. That even applies to "get the government out of marriage"; that is up to the residents of each individual state, not to some general principle of "less govt for its own sake." The only real Constitutional issue here is that the "full faith and credit" clause means that marriage in one state should be regarded as marriage in any state; the place where it occurs should govern.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

A particular portion of Scalia's dissent is incredibly fascinating.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

Based on a quick read, it seems like Scalia's reasoning on the jurisdictional issue in the DOMA case would make it possible for the government to pass and enforce any blatantly unconstitutional law it wanted and avoid ever having it struck down by simply conceding the argument every time some individual sued while continuing to enforce the law against everyone else (and, down the road, even against the same person who sued before). Basically, the government could perpetually insulate an unconstitutional law from general challenge precisely by admitting that it's unconstitutional in each specific case.

I think this ridiculous result reflects a flaw in Scalia's reasoning - namely, that he elevates form over substance by treating a pretense of agreement as if it were genuine. When one party purports to concede to the other party's legal theory yet declares its intent to persist in a course of action that would be precluded by such theory unless it's ordered not to by the court, then I would argue that there is no genuine concession, and the parties remain substantively adverse.

http://www.cracked.com/quick-fixes/a-30 ... fects-you/

Heh.

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Holy shitsnacks!

Can someone explain this to me? SCOTUS struck down the part of DOMA that means the Federal Government cannot recognize gay marriage. However, they left in the part about the exemption to the full faith and credit clause. So if a gay soldier marries their partner in Camp Pendleton, CA and gets transferred to Camp Lejune, NC they are no longer married. Right? And if they get transferred back to CA are they married again in the eyes of the Federal Government?

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Here's a pretty good overview:

http://washingtonpost.com/blogs/wonkblo ... e-rulings/

This would also require them to no longer enforce the law that the government is claiming unconstitutional. Should they continue to enforce it, the injured party could continue to seek redress up to and including the Supreme Court.

Effectively, Scalia is (correctly) saying that the Executive Branch is allowed to determine if things are unconstitutional too, and then simply not enforce them. See the quoted paragraph from his dissent above.



Yes, they would still remain adverse. That wasn't his point. His point was that the Executive said "we agree with this decision, we find this law to be unconstitutional" and then went on to enforce it anyway.

He think had a (justifiable) problem with this, because it creates the role of the Supreme Court as the unelected arbiter of the law in all cases, even when no adversity over belief exists. He doesn't like that, for solid logical reasons.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

I don't think that's correct, DFK. My initial read is that he's saying the injured party is only entitled to seek redress in the District Court:


In the portion of his dissent that you quoted (Scalia Dissent, page 9), he goes on to say, "Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement." However, as noted above, that order or consent decree will be at the District Court level, meaning it would have no precedential effect. Moreover, since Scalia is saying there's no controversy over the constitutionality of the law for the courts to adjudicate, even that District Court order should be one that simply enjoins enforcement against the particular plaintiff in the case. And that's the flaw I'm pointing out. Under Scalia's approach, if the government concedes that a law is unconstitutional but enforces it anyway, the only remedy available in the courts would be for individual plaintiffs to obtain a District Court order enjoining enforcement against them, which order would have no general applicability or precedential effect. Rinse and repeat whenever someone has the time, money and knowledge to actually file suit (which won't be the case for the vast majority of people), and the government would be free to continue enforcing the admittedly unconstitutional law against everyone else indefinitely, with no ability for the courts to ever strike down the law.

In any issue where there is a lack of legal adversity, the Court is already powerless to act in the first place. Scalia makes that abundantly clear in his dissent. On this specific issue, national harm was only created by the Justice Department (Obama's Justice department) appealing rulings the Executive agreed with in the first place. Scalia is intimately aware that Executive Orders are subject to judicial review, even if the public is not and the Bar acts as if it is not (U.S. v. Nixon is pretty universally ignored in current case law, which surprises me given public hostility toward the last Administration).
That would be true if the appellant party was the real plaintiff, but the appellant party was the Justice Department. They accepted the lower court's rulings, agreed to them, and then persisted in appealing the decision. The rest of Scalia's dissent not so subtly indicates that he feels this whole thing was just political shenanigans and not the province of the court in the first place.

And, based on your most recent reply to DFK!, I think you're misreading Scalia's dissent. This phrase -- "...the litigation should end in an order or a consent decree enjoining enforcement..." -- solves the juridical difficulty you're having here. If all of the situations exist as Scalia indicates, litigation stops and the Court issues a decree or order that resolves the situation by prohibiting enforcement and application of the affected the Statute.

The Proposition 8 Ruling, which we're all ignoring, might be far more problematic.

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Stop thinking about the courts. That's the point.

Scalia is saying the if the Executive agrees with the court's decision, and the parties are not adverse, they can choose to not follow the unconstitutional law.



That's not what he's saying at all.

He's saying:

If the two parties agree that something is unconstitutional, it should not be taken to the next level. The government should simply no longer enforce the law.

If they disagree, then it should go to a higher court (and ultimately the Supreme court).

The problem them arises when the two parties agree and the government continues to enforce. Scalia is saying this is WRONG according to the Constitution and then puts too much power in the Court.

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“The duty of a patriot is to protect his country from its government.” - Thomas Paine

Unless I'm mistaken, the original petitioner had still not received her money back at the time of the Appeals Court appeal, or the appeal to the Supreme Court; the government was agreeing with the decision in the abstract but also not complying with it.

That would appear to cause a real issue of contention; namely, who is entitled to the estate tax money?

The problem here is that our jurisprudence is not set up to deal with a party, especially when that party is the Executive Branch, trying to have it both ways. The concept of a real justicable controversy is based on the assumption that suits will be between parties that are actually at odds; it is not suited to a situation where losing the case is actually welcome to one party, especially where a third party (in this case, the Congressional office that took up the defense of the DOMA law; its name escapes me now) barges in and starts litigating in place of the party that wants to lose.

The simple fact here is that while the Democrats and the Left would be loathe to admit it, they contain large constituencies that are opposed to gay marriage; it is not merely a matter of white rural fundy-rednecks. Blacks and Hispanics have large populations of people that oppose same-sex marriage, both for religious reasons, personal moral reasons, and in many cases simple reasons of "manliness/machisimo" that are cultural in nature. These are the most prominent examples, but not the only ones.

The underlying reason for the Executive's contradictory behavior is a desire not to upset the "we represent everyone except straight white male Protestants that are either rural dwellers or reasonably economically successful" amalgamation of contradictory interests that the Left has built up. To those minorities that disapprove of homosexuality, the Executive can claim it still tried to enforce the law; to those in favor of same-sex marriage it can claim it refused to defend the law in court. In both cases, it can continue to present the above stereotype of its opposition, and claim its own mealy-mouthed indecisiveness is preferable to the imaginary white straight Protestant male right that in point of fact is no more unified in its views than the Left is.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

This is a somewhat odd position to take, considering it was just significantly disputed.

I can't say whether or not I'm happy with the methods and justification, but I'm happy with the outcome.

Arathain:

I like the outcome, I dislike the majority ruling. Scalia is right on the matters of law and legality: current juridical practice in the United States does not allow for the Supreme Court to claim jurisdiction or the appellant cases to proceed forward. Likewise, there are larger, more abundantly clear issues that have to be tackled before this has the outcome people think: as Scalia points out, the definition of marriage listed in DOMA is still in effect and empowered by the Definitions Act.

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An interesting poll that just popped into my head:

If it were between consenting adults, and they could show they could financially sustain themselves (ie: never be eligible for government aid), would you support the legalization of polygamy?

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Les Zombis et les Loups-Garous!

The solution to all of those questions remains the same: get government out of the business.

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