When the issue of SSM comes before the SCOTUS, I would expect the attorneys arguing in favor would present such scientific/medical evidence as exists that homosexuality is an immutable trait. So, no, they won’t hold hearings outside of the context of a specific case, but they will do so when the case is argued before them.
So far as I know, every current SCOTUS member accepts the idea of differing levels of scrutiny and certain suspect classes.
Interesting! I would never have guessed that.
It would probably also be “pro” on the cruel and unusual punishments issue. 
Appellate courts before the time of Louis Brandeis had never really heard of such a thing. By briefing the Supreme Court with the expert opinions of professionals in other fields, he is credited with creating the idea of presenting such evidence in an appellate case. Such briefs are commonplace now, but the lawyers still know what a “Brandeis brief” is. It blurs the line between appellate practice and trial practice if you ask me, but I’m not really against it.
He also almost single-handedly created our right to privacy jurisprudence.
Bricker, do you disagree with their protocols, which consider these standards? I’m not sure I’m following you. Do you believe that these standards are reasonable, but homosexuality as a suspect class would miss them? Or that the standards are examples of “doing violence to self-government”?
I’m no expert, but it seems self-evident that homosexuality would meet the standard for a suspect class. I’m missing where you’d see the activism in such a conclusion, unless you think that whole protocol is an example of activism.
Interesting, but the scientific information is still formatted for lawyers and presented by them. Does SCOTUS ever invite (or subpoena) testimony from nonlawyer expert witnesses directly?
Well, I gather it could also hypothetically be influenced by people menacing Justices with severed horse heads, i.e. (assuming I now understand the point of that hypothetical) the individual justices are prone to interpret what standards are being met while being influenced by their personal experiences and opinions and, from an outsider’s perspective, will sometimes yield a favourable result and sometimes not. These nine people (or really just one or two of them if the vote is close) occasionally hold the massive power to nullify the actions of the legislative branch. That doesn’t strike me as something to be overly concerned about (as long as the occasions are relatively rare) but mileage varies.
I’m not personally aware of any instance where a Justice was coerced (or eliminated, Pelican Brief style), but I suppose it could happen. It could happen at most any level of government.
There might be some confusion here as to what the board thinks.
I believe that Bricker is saying that all nine justices substantially agree on the methodology of analysis in equal protection jurisprudence.
I do not think he is passing on a question of whether all nine justices are substantially in agreement on whether any particular group is a suspect class, or otherwise entitled to a particular level of scrutiny in that analysis. The answer here is yes, they have differing ideas. Yes Scalia and Thomas would be more prone to not see gays as a suspect class, I would think.
'The board" ? Only five people have posted to this thread in the last ~28 hours.
Yup.
Well, their differing ideas at least ensures a variety of opinion and interpretation of a given issue. What mechanism, if any, should be available to the citizen to challenge a long-standing (or even not-so-long-standing) law that he claims is unjust? Ride it out and hope the next legislative session will repeal it?
But, Bricker, your comments on “violence to self-government” tip your hand (I think)–are you in agreement, then, with Scalia and Thomas? Why? Or do I misinterpret? Have they, the justices, tipped their hands? Why might they not see a suspect class here?
If you’d rather not share, no biggie. I am genuinely interested (though I may not see an answer till I’m back from a business trip; leaving shortly)…
I do see a suspect class here.
But not because of anything new. I have come to believe, from a factual standpoint, that if you apply the famous “Footnote Four” from Carolene Products, the result is that gays are entitled to at least intermediate scrutiny.
Further development of the footnote four idea has resulted in qualifying such classes with characteristics such as: a) an immutable distinguishing characteristic;
b) economic disadvantage; and c) political powerlessness.
Let’s compare women/gender (intermediate) and black/race (strict) with gay:
a) an immutable distinguishing characteristic: There is nothing to see with a gay that makes them gay. As a woman and a black can both usually be determined to be so with not much more than a glance, these classes both have immutable distinguishing characteristics as classes. Gays claim near 100% genetic causes, but such a claim has yet to be proven. There is no genetic “gay” test as there is for other genetic issues. You can’t go to the doctor and ask him to screen you for homosexuality.
There is one way and only one way to know for sure if a person is gay, and that is if they tell you they are. You could possibly surmise that someone is gay from their behavior, but that is not true as a class.
Are you willing to create a suspect classification based on the say-so of people claiming to be in that class alone? Whereas when a woman or a black walks into the courthouse to sue for discrimination, we can be sure, because of immutable distinguishing characteristics, they are what they claim they are. Now I guess you’re saying it’s a given based on a person’s say-so. How will we detect a false gay rights lawsuit for a million dollars once we create this classification? I’m not gay but I say I am, now pay.
b) economic disadvantage: there can be no denying that nearly all blacks used to be poor. Even today we pay less to women than we do men for the same job at the same company. In comparison, gays as a group have been found to have a median income of around 50k while the rest of the country is earning 35k.
c) political powerlessness: In my view the most debatable. There was a time when gays were fairly powerless politically in this country. Nevertheless, that began to change when they got organized. We don’t view women as politically powerless or blacks today. They both gained political power.
Personally, I don’t count a group as politically powerless if they haven’t tried to influence the political process; being powerless and failing to avail yourself are two different things. Once gays became political, they began to gain clout almost immediately (in comparison to blacks, for whom it took almost a hundred years of political complaining despite organizing themselves, although they did have some success along the way).
Today gays are succeeding at gaining political clout. Half the country supports them even as far as gay marriage. We have seen openly gay people in Congress and a lot more in state legislatures. Gays have been successful in several states getting laws changed to their liking. All without being designated a suspect class by the courts beforehand. In comparison, blacks got little done without the courts first stepping in. Women had an easier time than the blacks did, though with the political process; the right to vote was a political victory; desegragation required court action.
There are many laws in this country that protect gays that were passed by the ordinary political process.
I do not find, in comparison to precedent classes, that gays have either an immutable characteristic, are economically disadvantaged, or are politically powerless.
Minor qualification, Bryan: the SCC did not hold that same-sex marriage was constitutionally required; rather, it held that same-sex marriage was not contrary to the Constitution. Same-sex marriage was then implemented nationally by the Civil Marriage Act passed by Parliament.
Somehow it is no surprise that Bryan’s “cite” to a precedent turns out to not be a cite to the proposition that gays have a right to marry, after all.
Is there a reason you’re hung up assuming that all justices use precedent? Scalia and Thomas are originalists and don’t believe in stare decisis to make their decisions. Scalia even said “Clarence Thomas doesn’t believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right.”
[QUOTE=David42]
Further development of the footnote four idea has resulted in qualifying such classes with characteristics such as: a) an immutable distinguishing characteristic;
b) economic disadvantage; and c) political powerlessness.
[/QUOTE]
A) Immutable. Can’t change being gay.
B) Economic disadvantage. Not sure where your claim comes from since you didn’t cite anything. But:
Report: Gay couples similar to straight spouses in age, income
The couples had an average age of 52 and household incomes of $91,558, while 31% were raising children. That compares with an average age of 50, household income of $95,075 and 43% raising children for married heterosexual couples.
Hmm, actually looks like GLBT families are making less actually.
Here’s another cite:
Interestingly, Clark found that “[g]ay males earn less than straight males, often much less. Meanwhile, lesbians earn more than straight females.”
So it looks like B is also showing proof.
And C: Political powerlessness is a no-brainer. GLBTs are completely disproportionately represented in the US. Of the 535 members of congress, three were gay in the 111th. 0.56% is quite politically powerless. And public polls are meaningless when laws have been enacted. Up until a couple months ago, it was completely legal to be kicked out of the US armed forces for saying that you were GLBT.
And frankly, statements like this:
[QUOTE=David42]
Once gays became political…
[/QUOTE]
almost sounds like you are assuming gays are a new thing that haven’t been around and have never voted before.
There is ample court precedent in support of that proposition in Canada. By the time Parliament enacted the Civil Marriage Act, the courts in 10 of the 13 provinces and territories had ruled that same-sex marriage was required by the Constitution. The three exceptions were Alberta, Prince Edward Island and Nunavut. It’s just that the Supreme Court did not rule on that particular point in the Marriage Reference.
Just to follow-up on this point, the 2004 Supreme Court of Canada reference decision was an advisory opinion, requested by the federal government, a process which is permitted under our Constitution. However, while reference decisions are strongly persuasive, they are not binding in law. That was one of the reasons the Court declined to answer Question 4, whether same-sex marriage was constitutionally required:
[QUOTE=Supreme Court headnote]
Finally, an answer to Question 4 has the potential to undermine the government’s stated goal of achieving uniformity in respect of civil marriage across Canada. While uniformity would be achieved if the answer were “no”, a “yes” answer would, by contrast, throw the law into confusion. The lower courts’ decisions in the matters giving rise to this reference are binding in their respective provinces. They would be cast into doubt by an advisory opinion which expressed a contrary view, even though it could not overturn them.
[/QUOTE]
By declining to answer Question 4, the SCC left in place the 10 court decisions across the country which had held that same-sex marriage was constitutionally required.