Scalia is really eloquent, but his prose tends toward the purple :
Alito made a compelling case :
Kennedy’s opinion was just a lot of mush and blather. Scalia really nailed him on how insincere he is about the scope of the ruling.
I don’t read many SCOTUS rulings and haven’t had nearly a chance to read this one yet, but doesn’t Scalia and Roberts being on the same side of both cases kind of make sense?
My understanding (and I’ll admit I may be wrong) on both cases is part of the controversy was the standing of the participants. In the Prop 8 case, the Government of California was not appealing the lower court ruling, so a group of citizens was on its behalf. In the DOMA case, the DoJ was not appealing a lower court ruling granting Windsor a refund in the $350k in estate taxes she paid + interest so a lawyer representing the House of Representatives argued the case. In both cases both Roberts and Scalia argued that since one of the parties wasn’t really properly party to the controversy the SCOTUS should not have ruled at all (without reading the ruling I understand it Scalia also went a lot further into other stuff while Roberts was more restrained and conciliatory toward the majority in DOMA.)
I also don’t see how the dissent is really equivalent at all to the Dred Scott decision (I’m assuming Valteron meant the DOMA dissenters since some of the Prop 8 dissent was in the majority in DOMA and vice versa.) The dissent doesn’t appear to talk about inherent inequality of any groups of people nor do they define gays as chattel with no rights or protections in any of the States as was ruled in Dred Scott in regard to slaves. In fact it appears the dissent was based on legal quibbles over standing.
Is this correct or no? As someone who has read the decision I thought you might have insight on this.
I am curious about a few things. Especially the affect on individuals getting married in one State which has gay marriage but residing in a State that doesn’t. How many Federal benefits are based on what your State of residence considers a valid marriage versus the State in which you were married?
Also, there are several States which issue civil unions (they are not part of the “12”, or 13 with California, States people talk about as having gay marriage) for gay couples, would we assume those would be treated the same as marriages for Federal benefit purposes?
This would also appear to implicitly say an out of country marriage is valid for Federal law as well, as long as you’re in a State that allows gay marriage. Because I understand Windsor actually married her partner in Canada, but lived in New York State.
Props to me for correctly predicting that they’d rule on jurisdictional grounds.
Hardly. Alito’s argument is that the right to same-sex marriage is not deeply rooted, without providing any factual basis for why it differs from the clearly deeply-rooted general right to marriage.
No, no! Rights to marriage that are not deeply rooted cannot be recognized. Take for example the right of blacks and whites to racial intermarriage. Since the vast majority of states (both free and slave) had laws against such marriage at one point or another, the SCOTUS could NEVER go against existing laws and customs and allow it.
Oh, wait a second. . . . .!
I was just reading an article on NPR about this. It looks like a hodge-podge mess.
That article appeared to imply that this has the potential to get sorted out without congress getting involved. Could Pres Obama just say ‘Make it so’ and be done with it?
(or did I read this completely wrong?)
Some of it can be sorted out at the administrative level. Basically, where Congress has specified that entitlement to certain benefits is prescribed by agency regulation. Where the threshold for entitlement is specified in the statute, it will mostly need to be sorted out by Congress. I suspect that most requirements for federal benefits accruing to married federal employees are set by regulation (mostly by the Office of Personnel Management), but that most requirements for federal benefits generally are specified in statute.
:rolleyes:
Give it a rest. Whatever similarities there might be between prohibitions against inter-racial marriage and same sex marriage, there is clearly a difference regarding how “deeply rooted” such laws are. Anti-miscegenation laws were never universal in the U.S. and may not have even occurred outside the U.S. in Western Societies. They were not a “deeply rooted” phenomenon.
On the other hand, the slight claims for same sex marriage in history are scattered, ambiguous, and otherwise not strong.
Support for same sex marriage is the correct decision, but the tradition of marriage as only heterosexual is, (unlike monoracial marriage), “deeply rooted.”
What a gross argument.
Of course, what this boils down to is that hatred of gays was more “deeply rooted” than hatred of blacks.
It’s kind of like the idea that the justices from Loving v Virginia would be shocked at the idea of SSM. Some folks think that’s justification for denying SSM, some think it simply shows just how incredibly marginalized homosexuals have been in the past.
Not really. Even in societies that had no problem with people having homosexual relationships they weren’t cool with gay marriage. The whole concept of marriage was tied up in familial arrangements, securing property/land rights etc. Its concept as anything other than a union for procreative purposes was out of the norm. So even in societies where men would barely speak to their wives and spoke of them in the same terms they spoke of cattle, and who would have deep relationships with male lovers, the concept of gay marriage just didn’t exist. Marriage was about a sexually reproductive union that produced offspring for various cultural/familial/societal purposes.
First cousin marriages are deeply rooted in a number of places, as are polygamous marriages, but aren’t recognized for Federal purposes if they are not legal where the parties reside. We have this come up all the time at work with, for example, Palestinian-American clients who return to Palestine and marry a first cousin and then file immigrant petitions. The U.S. Consulate in Jerusalem will only issue the immigrant visa if first cousin marriages are legally recognized in the state where they intend to reside. Of course, after the foreign spouse gets his/her green card, he/she can live anywhere in the U.S.
Which is just an argument that historical versions of marriage should be considered irrelevant since that if anything resembles modern American heterosexual marriage less than same sex marriage does.
Which is fine, in its way.
However, trying to set up anti-miscegenation laws as “the same as” anti-Same Sex marriage laws simply fails on a number of factual points, both in terms of relationsships and history.
Now that the SCOTUS has removed the arbitrary federally imposed sanctions against states that recognize Same Sex marriage, I am hoping that the movement will shift to getting the states to recognize SSM via the legislatures so that we are not hearing about “judicial activism” decades from now. (I’d have preferred that DOMA would have been repealed by Congress, for the same reason, but I can live with a decision that asserts that DOMA was unfair in setting up a two tier recognition of rights between the Feds and the states.)
= = =
The Prop 8 decision is liable to cause future problems. Rejected because an “outside group” had no standing to compel the state to defend a referendum against a court decision, if the next California election brings in a pro-Prop 8 governor, he could order his AG to sue to overturn the Ninth Court’s decision, and he (or she) will have standing.
Res iudicata bars relitigation of the Prop 8 issue; it has already been decided on its merits, just not by SCOTUS. The people of California could pass it again, and then relitigate it, but that seems unlikely.
Here’s one analysis on SSM and immigration in light of today’s decision, though I don’t know that I agree with all of it.
Including the spelling of the word “legalese”.
I was about to say “They’re not that old” until I realized I’d have to look that up to make sure.
Sir, I assure you that you have only scratched the surface of the sort of things that I am thoroughly confused by.
( :smack: darn that spell check for not reading my mind. )
Do you not see the circular reasoning and troubling aspects of defining a right only by those who can enjoy it? Saying “well the right to marriage is fundamental, unless you want to marry someone of the same sex” is akin to saying “the right to marriage is fundamental, unless you want to marry someone of a different race”.