Ok, Not Really All That Bright, here’s parts 1 and 2 for Herbert v. Kitchen.
Again, this case did not decide under strict scrutiny. It discussed it and clearly decided that to follow current precedent he has to decide under rational basis review. An yes, he does commit the rational basis sins already discussed, i.e., the “perfectionist argument.” For which I have shown ample authority for, and while one Doper Concedes these at least for rational basis, none of you have challenged, which I take for acceptance.
Well here’s one weird question, may not mean much:
“The two are both concerned about how they will support each other in the event that one of them passes away, a consideration that is especially urgent in light of Karen’s illness”
Dead people need no support. This concern is actually probably “They are concerned about how a survivor will be supported if one of them passes away.” But they should know which one of them has means, and which one will have no means if the other dies. Or do they mean to say they each have small incomes together, which pay the bills, but neither has adequate means alone?
Summary Judgment, no trial.
Part I
Here the court gives us specifc facts of the plaintiffs and rumbles around with some generalities of constitutional law without telling us how they apply.
I boded all the quotes of the court from here on out.
“Both parties present compelling arguments, and the protection of states’ rights and
individual rights are both weighty concerns. In Windsor, these interests were allied against the
ability of the federal government to disregard a state law that protected individual rights. Here,
these interests directly oppose each other.”
“The Constitution’s protection of the individual rights of gay and lesbian citizens is
equally dispositive” first mention of a right, and the court has not told us where this right comes from. We want to be careful and watch where this right comes from.
Therefore, so far I am going to argue a false premise.
Next
In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor: In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same sex couples marital status. 133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor…
The hell it does. This court agrees with Scalia on one point only, the effect Windsor will have on this question. I guess this court does not know, but dissents do not set precedent. Sometimes a dissent is adopted by a majority later, but a dissent has no precedential value until a majority adopts it.
Part II
Next the court gets into Baker.
**“Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig versus Boren, 429 U.S. 190, 197 (1976)…” **
(Disagrees with McShane in Marley’s Oregon case, where the court said SSM is not a matter of gender discrimination. Will this court later hold SSM is indeed a matter of gender discrimination? If not, how could this doctrinal development have any bearing? This is a doctrinal development in another area and does not apply unless it does.)
**“…, but also before the Court recognized that the Constitution protects individuals from
discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36
(1996).” **
But this case didn't hold anti-gay discrimination is a matter of gender discrimination. So, which is it? These are two different doctrinal developments; neither of which applies. Both the 1st and 8th circuits have rejected Romer and Lawrence "doctrinal developments. We have to wait and see whether this court uses both, because if it does, it has done no wrong here. But if it doesn't, at the kindest we will have to say this court is a bit ignorant of building its case; but perhaps not the worst we could say, if we're not feeling kind, is that this court is misleading us. We will soon find out.
Nevertheless, Baker’s questions aren’t which standard of review to apply—they are whether EP and DP apply at all, because no relief available would have to mean it was contemplated at the highest level, strict scrutiny. And the fact of the matter is we do not delve into what the Supreme Reasoned—it didn’t tell us any. And of course there was no dissent in Baker.
The court then notes that Lawrence removes one justification for denying SSM, but leaves it unsaid, but I will supply morality as that reason, that, actually is a reason we can only be sure removes morality as a justification for criminal sanctions against homosexual sex conduct. Not quite the same thing. Whether the government grants you a particular status or is punishing you have quite different implications.
“The State points out that, despite the doctrinal developments in these cases and others, a
number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker “limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage.”); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs’ equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California’s prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.”
Well, ok, the court mentions the 1st circuit like it should. But for some reason fails to mention Citizens v. Bruning which I have quoted and analyzed from previously. But then we get back into this tricksey, tricksey territory when the court talks about Perry v Schwarzenegger, at the district court level. Yes, the district court said what this court says it said, but it DAMN WELL KNOWS that the 9th circuit in Perry v Brown, as Perry v Scharzenegger morphed into, did not agree and decided the case on different grounds. There is no precedent in the 9th circuit for an EP or DP claim under the federal constitution. Instead the ninth circuit’s grounds were that it is unconstitutional to withdraw a right once secured. I don’t need to read further to know that this court is committing stare decisis treason, or else is too ignorant to be on the bench.
Next this court claims that it’s view is authorized by justices Roberts and Scalia’s dissents. Of course, Dissents are to be ignored for precedential value, as previously explained. Secondly, he misreads them, and leaves out the more relevant things Roberts said.
**“Importantly, the Windsor Court foresaw that its ruling would precede a
number of lawsuits in state and lower federal courts raising the question of a state’s ability to
prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable
John Roberts wrote that the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.” Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decisionwhen presented with the question that is now before it: “I do not mean to suggest disagreement . . that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples.” Id. at 2709 (Scalia, J., dissenting).” **
That’s what the dissenters see, not “the court.” Bait and switch–starts off telling us it is the court that says this must lead to SSM, but then supports that with only non-binding dissent.
Roberts is pointing out that the decision goes no further and should not be applied to state cases of SSM, but the court draws the opposite conclusion that Roberts is telling him to take Windsor as precedent, and ignores the following:
**But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,”ante, at18, may continue to utilize the traditional definition of marriage. ** Roberts, Windsor, Dissenting
And then it gets worse with Scalia’s view:
I do not mean to suggest disagreement withThe Chief Justice’s view,ante,p.2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court couldtheoreticallydo so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away. Scalia, Windsor, Dissenting
A distinguished case does not mean it should be treated with honor, as this court seems to mistake the use of the word. It means there are reasons to not follow it for the current case, because of how different the facts and circumstances are. Windsor is unique and will stand alone—never will it be the case again that the federal government ignores a state’s determination of a marriage law for same-sex couples.
That’s it for Windsor and any “doctrinal change” the court is applying from it. I think it is very important when assigning weight to this case to note that it draws nothing from Windsor’s majority along the lines of a doctrianl shift to say Baker should become non-precedential. This court cites NOTHING in Kennedy’s opinion and never held the majority had indicated a doctrinal development. What utter crap. I was honestly hoping for an intellectual discourse on how Windsor’s MAJORITY had given us a doctrinal development. I can’t see it and am eager for some court to show me, but this one sure isn’t.
We are absolutely off in La-La land when the court next tells us that the fact that the Supreme Court did not summarily deny Hollingsworth as it did Baker indicates a doctrinal shift from Baker. Baker had EP and Due Process applied to SSM before the court. But the 9th circuit court of appeals had rejected Judge Walker’s EP and DP arguments and instead ruled a right once given may not be taken away, at least in their case. There is a test for it, so this is not absolute. It is that question and not EP nor DP, so the Supreme Court gave us no hint about Baker in granting cert for Hollingsworth. Perhaps this court simply presumes that the 9th circuit upheld Walker’s reasoning. It sure looks like it, and the alternative is mendacity. At the most, you could say maybe this time the plaintiffs in Hollingsworth raised a claim that IS a federal question. And yet Oregon did not grant a right and then take it away. The fact is, the only thing you can draw from Hollingsworth about Baker is they seem to agree, no EP or DP here.
Like seems to be the case in popular opinion, any pro-gay outcome in a court case seems to back all the others up, but there’s a huge problem with that—all these pro gay cases are disagreeing in their reasoning. One says there is EP and another says there isn’t but both wind up with pro-gay results. These lower courts cannot all be right when they are contradicting each other.
I conclude for part II that this case will not survive the appeals process unless the appellate court comes up with better reasons for a doctrinal development because Baker should foreclose it, and this court does not offer any valid reason to find a “doctrinal shift.”