A deeply enjoyable thread. Meanwhile, marriage equality continues in Oregon, and the Supreme Court declined to issue a stay.
You are moving the goalposts, again. When I asked where were the “lots of” authorities who asserted that marriage was of “one man and one woman,” you made a big deal about the fact that the court did not have to make that explicit declaration in each case, (or any case), because that was the common meaning of the word.
So do your deny posting the following?
If you still hold to your point that you now appear to wish to ignore, I give you the following:
As to views shifting back. They may. That is why I prefer the ballot to the bench for this decision.
However, if one is going to make claims that the court need not define the matter because it draws the definition from common usage, then one should admit that common usage is clearly changing and has already gone a very long way to having changed.
I didn’t complete the thought here: it’ll be fun to look back at this post because I expect you’ll argue that the case legalizing SSM was wrongly decided. That’s how I feel about, for example, Gregg v. Georgia. That’s a disagreement between me and the court, but it sounds like you think anyone who disagrees with the Supreme Court is in denial. Even the justices of the Supreme Court probably wouldn’t take that stance.
Anyway, while you continue to leave out a lot of details, I think I’m still right that you are asking me to come up with a cite for something that I think will happen in the future. That’s not how time works, or else perhaps you’re stalling. My view is that bans on same-sex marriage violate the equal protection clause. State court rulings are marching to this tune: since Windsor a state-level bans seem to get overturned every couple of weeks. The Supreme Court overturned the Defense of Marriage Act in Windsor but hasn’t yet found bans on SSM unconstitutional. The situation right now is obviously untenable: state courts are telling SCOTUS that it’s giving them mixed messages and that they need clearer instructions. My view is that that’s going to happen very soon, and it’ll take the form of the court eliminating those state-level bans. You’ve already posted a cite that marriage is a fundamental right, and my view is that once society recognizes marriage as a fundamental right, it can’t deny that right to same-sex couples. Your response seems to be “the Supreme Court has never done that!!” Well duh. Since I’m offering an opinion and talking about what’s going to happen, that’s a dodge or else you’ve missed the point in a way that’s so elementary it’s hard for an outsider to understand.
There’s no moving the goalposts going on.
You might be right though if there was still a law left that just talked about “marriage.” but the laws today are all specific so far as I know, so what the court gives plain meaning to is “one man plus one woman” type language. That is precisely what prompted all the state law changes and constitutional amendments-- the realization that a court might take “marriage” to mean something other than one man and one woman.
So, yes, a modern court could have done what you say, get the dictionary out and note the meaning is accepted as having changed. I doubt the dictionary standards are quite being followed though–the most common vernacular still attaches “gay” or “same sex” before marriage so that people know what they are talking about. I’m not arguing against the fact that they did it or that the dictionary is an authority. But if it is true that the meaning changed, why does the media still use “gay” marriage or “SSM” to tell us the news in its headlines?
As I said, the statutes have been changed to eliminate the common usage angle.
I’m glad we agree that the ballot box is preferable to the bench, if even if our reasons differ. Actually I agree with your reason, I just have some additional reasons.
Nevertheless, getting out the dictionary to define marriage should not be done when the statute specifically defines the word such as a statute that says “one man and one woman only shall comprise a marriage,” because, of course, the controlling power here is the state and not the dictionary. The state is simply presumed to mean what the dictionary means when it doesn’t say otherwise.
But in the end, as far a dictionaries and the meanings of words go, we also have to look to the words as the legislature that wrote them saw them.
If, for instance, if a dictionary decided to make a distinction between “arms” and “firearms” so that internal combustion projectile-firing weapons were “firearms” only, and “arms” were only those weapons that did not use internal combustion to force a projectile out, I would still say the constitution protects firearms.
To hold otherwise would be to place a great deal of power–indeed that of virtually amending the Constitution–into the hands of dictionary editors. And the more controversial a subject is, the less weight I give the dictionary because of the possibility of the editors taking sides and being coercive.
I am proffering the highest authority on the state of the law. You can say your opinion is otherwise, BUT THE reality is the Supreme Court says otherwise. I say lots of cases are wrongly decided, but I do not question what is clearly the state of the law.
Under current precedent, you have no grounds to claim as the state of the law that the fourteenth amendment’s EP clause creates a right. That is NOT the state of our law.
Differentiating can be tricky–I can say such and such a case was wrongly decided–and that could be an opinion, but if I then show how the court did not follow precedent, and is simply bucking the higher courts to do what it wants, then the matter becomes again one of what is the state of the law.
For instance, in the Jones thread I had a personal opinion that trespass should still be related to fourth amendment jurisprudence, just not controlling it alone. But that was not the state of the law, and of course Bricker and I went through whether I was arguing the state of the law should change. We settled that and had no more difficulty.
So claiming, for instance that your case was wrong merely because I do not like some principle of law the court used, it would make it merely my opinion which need not influence anyone. But if I claim your case is wrong because it does not reflect the current state of the law, that is not my opinion–it is a matter of the state of the law. But it so happens that I agree for the most part–a little bit undecided–with the Oregon case you presented. I do not agree with your unwarranted opinion that it holds there is a fundamental right, though, because it didn’t.
I’d like to more fully address this.
While it is true that there has been a trend to overturn state marriage laws post-Windsor, there is a slight problem in determining what it means.
That problem is centered on the fact that these courts do not all follow the same reasoning. Indeed they have different facts.
General agreement with results is one thing–but it is impossible to agree with all of their reasoning. The Oregon case, for instance, for instance, said it is a matter of rational basis and said SSM bans cannot cut it when the state concedes it reasoning against it by enacting civil unions. But it was the civil unions that played a central part in its reasoning to find irrationality. The state can only have it one way or the other, not both. And that gets into questions I do not know about, but this court did not talk about Windsor authorizing a doctrinal shift it could take advantage of.
But for instance, Herbert v Kitchen, the Utah case–there the court did say that the Windsor decision gave it a doctrinal shift it could use. However, in discussing these so-called doctrinal shifts, the court relied upon the dissent’s RESULT ORIENTED comments that the majority’s opinion would lead to SSM. The court never identifies what doctrinal shift or explain how it works–so it just tells us that Roberts and Scalia predicted the result, but never clarified what in Windsor the majority gave to him as the actual shift.
But the disagreement amongst the district courts so far isn’t over results. It’s over the doctrines used to get there. But when the Supreme Court rules on this matter, it will only choose ONE rationale. Some of the district courts will be wrong and some will be right. Some of the cases present different questions. Some of the alws have different language. This all comes into play, and that is why it makes no sense to construct an amalgam of the district court rulings and say it is inevitable==because so far as I have seen, none agree on the “doctrinal” shifts from Windsor–and the Supreme Court certainly did NOT announce any doctrinal shifts. What would give great weight to the matter in the way you give it great weight is that the cases would agree on what the doctrinal shift in Windsor is. They don;t and that makes the matter dubious. Instead they only agree in result.*
A precedent in law is not to the result of a specific case, it is to application of doctrine use, thus two different cases with opposite results are both precedent if they agree on doctrine.
Both the first and eighth circuits held Lawrence had no doctrinal shift–same old doctrines applied to a new matter. Without a clearly identified doctrinal shift that can be substantially articulated, these cases will stand. And that’s the problem–out of all these district court cases, which ones clearly identify and apply Windsor’s alleged doctrinal shifts. No-one here is able to point to this shift with any clarity, just some vague “well there was some kind of shift, and all these courts are striking it down, so it must be so.”
Still, we need to know what that shift is to be able to show whether they are right or not, because they cannot all be right if they are contradictory as to what the shift was.
The first circuit struck down DOMA in the Mass v. USDHHA case I proffered. The newspaper told us all about the striking down of DOMA, and the gays celebrated over the results. But the court also said with equal authority that Baker forecloses EP and DP questions. So, is this a pro-gay case or not? Nether, it is neutral–it gave the gays the result they wanted of striking down DOMA. But along the way it said there is no fundamental right to SSM and EP and DP are foreclosed by Baker.
*I haven’t read all of them, so it is possible some use precisely the same reasoning as another. I refer to what I have read/what has been proffered in this thread.
Oregon isn’t vigorously defending, and the questions are different when civil union laws have been enacted. But in a state such as Utah, which has no civil unions and vigorously contests the pro-SSM ruling, Justice Sotomayer granted a stay.
One of the questions in granting a stay is the likelihood that the side requesting a stay will win on the merits. Oregon’s position is “well it’s my job to defend the law so I’ll go through the motions of defending it, but since I agree with the other side, I’m not really defending it” and that bears on the likelihood of prevailing. Someone who isn’t trying to prevail is unlikely to prevail.
And marriage equality is a manipulative phrase unless it is being used to further all people’s marriage inequality problems, not just LGBT’s and also presumes that the question has already been settled. There’s a lot to saying there is no equality problem, in the sense there is no EP case.
No, “marriage equality” is the nomenclature used by us, “the gays.” You’re welcome to feel manipulated if that pleases you.
You know, when people call you “the gays” it always makes feel like there’s some really cool club and I’m being left out. “Hey Zak! Have you joined The Gays yet?” “No. There was something wrong with my application and I have to wait until next time. :(” 
This is what I talked about earlier: if my opinion is that SCOTUS should find X or that it will find X, ‘SCOTUS hasn’t found X’ is not valid counterargument. It doesn’t address the issue, and furthermore, the fact that SCOTUS hasn’t yet found X is implied by what I said in the first place.
But we’re talking about things the Supreme Court HAS found, such as there is no fundamental right to SSM and the EP clause does not create substantive rights.
You simply can’t handle that there is no fundamental right to SSM or that you have seen the EP clause wrong all this time.
Hiya, David42!
Pardon my late arrival here, and I also apologize for rehashing some things that were brought up earlier and then discarded.
But I hope these points will be of some value.
In discussing Windsor some hay was made about Justice Scalia’s dissent, and in particular the “parade of horribles:”
Now, your response was that a dissent is not binding precedent --and of course that’s true. But Scalia’s dissent is not offered here for its precedential control, but for its analytical accuracy.
Windsor is the law of the land. Correct?
Now, given Windor’s dictates and reasoning, why is Nino wrong? Why can’t a challenge to a state law forbidding same-sex marriage simply cut and paste the Windsor rationale into their pleading, substituting their state and state’s law for DOMA, and be entitled to precisely the same relief?
That is what you are talking about. But I’m not sure why you’re doing it because I’ve been talking about what I think it should and will find. For example:
The Court does not need to find a right to SSM specifically. It will find that denying recognition of same-sex relationships violates the equal protection clause.
I assume you are referring to my analysis of Kitchen v Herbert, (Utah) at least that’s the only time I recall Scalia’s dissent being brought up.
Specifically what I challenged there is whether anything at all in a dissent could be used, absent any reasoning from the majority, to justify a “doctrinal shift” in order to ignore what would otherwise be precedent, as the Kitchen court did.
As for simply substituting the state for the feds in Windsor, it leads to absurd results.
Because no state has any state-sanctioned marriages that it then denies and calls a subset or treats differently?
Plus the Kitchen court’s view of Scalia’s “distinguish away” appears to be that Scalia is saying to honor Windsor–as we might say “the distinguished gentleman Nino Scalia” which would indicate respect for him–whereas a “distinguished case” means more or less there are differences that wouold lead us not to follow it in some subsequent case that is different in fact or law.
Of course you are more interested, it appears, that Scalia had said how easy it would be to apply the majority’s rationale and then strike down SSM bans. I simply disagree–the majority was aware of Scalia’s claim and disregarded it. It is only guesswork why they disregarded it; perhaps because they think SSM isn’t inevitable under Windsor, or because they believe the precise opposite.
As for whether another court could adopt Scalia’s reasoning, I suppose they could, but I think it is faulty. Sometimes in my view various courts say any damn thing they want to. Why give this dissent more weight than O’Connor’s concurrence in Lawrence that there ARE in fact other reasons than moral disapproval to maintain traditional marriage?
I believe Windsor to be readily distinguishable from any case with an SSM ban alone.
Prior to DOMA, the Congress had never, to my knowledge, taken steps to override a state’s authority on what constitutes a marriage–it didn’t pass a law to disregard any possible state recognition of polygamy when that was threatened, and it didn’t pass a law refusing to recognize interracial marriage when that was in practice–it had simply accepted the state definition accordingly.
But to exchange Congress for a state legislature in the reasoning of DOMA leads us to the problematic idea that the state says Yes to SSM while saying NO to gay marriage, as if it had a law recognizing SSM and was issuing the licenses and then for some reason was later ignoring them in any way differnet than it might do the same for an opposite paired couple.
The nearest analogous situation is the example of a state like Oregon that has a civil union scheme so that it sort of says yes and no at the same time–because it says yes to the rights and incidents of marriage yet says no to actually calling it a marriage.
So I see Windsor as having more impact in a state with civil unions that it does with a state that has an SSM ban alone.
Windsor is the law of the land and should absolutely be followed in any other case that is on all fours with it in regard to facts and applicable law–but there is not going to be any such case on all fours any time soon because of the unliklihood that Congress will again challenge state authority on the matter. I understand that Windsor involves EP and DP, but the EP applied is to a question of whether it is equal treatment to view some state approved marriages differently than other state approved marriages and the DP applied is the liberty interest in engaging in what the state offers with full respect of the federal government, since the state has plenary power to decide such question.
I admiot WIndsor is not clear to me, and have asked for someone to perhaps explain what I am missing, if indeed I am missing something. This request has so far gone unfulfilled.
Thus, there is no analogous situation even similar to what was in issue in Windsor in a state with an SSM ban alone.
If there is a doctrinal shift in Windsor, it would be whether to apply heightened scrutiny or not. But the Kitchen court did not find that doctrinal shift–it decided under rational basis, even though it also said in dicta that it could apply strict scrutiny or heightened scrutiny; nevertheless it only analyzed under rational basis.
Instead the Kitchen court found a doctrinal shift that allowed it to ignore Baker v Nelson, which didn’t have the same question as Windsor.
Windsor’s question: “Do the EP principles of the fifth amendment prevent the federal government from refusing to recognize a marriage the state has given its approval to?”
Baker’s question: “Do the EP and DP clauses of the 14th amendment compel a state to offer marriage to same sex couples?”
Windsor may indeed get into the area of applying heightened scrutiny on the basis of sexual orientation, but since it involves state approval of SSM, the question heightened scrutiny is applied to is a different one than inquiring whether EP and DP require a state to recognize SSM to begin with.
My point is, if the Supreme Court has already said there is no relief available under federal EP and DP under any standard of analysis at all, (a view adhered to post-Lawrence by the 1st and 8th circuits in 2006 and 2012, post- Lawrence, and if there was a doctrinal shift in Windsor, it seems to me that it must be present in Lawrence as well, as they both engage in heightened scrutiny language without identifying it as such) then it still forecloses the question of whether to apply rational basis or heightened scrutiny–because there is no relief available even under strict scrutiny, according to Baker.
Oh and by the way, Hiya Bricker! I am glad that we have the chance to spar again as I believe you adhere to high standards of reasoning and debate.
I just noticed I goofed here. I said “And yet Oregon did not grant a right” and that should be Utah, not Oregon.
No more absurd than the result from Windsor itself.
I’m not sure the majority discarded it – it simply would have dicta in Windsor. (Of course you could argue that this consideration did not stop the majority in Windsor in what they did say, but surely there’s a difference between what they said and the far-reaching ruling that would have resulted from actually applying their dicta to state law in that same decision).
Perhaps it is readily distinguishable – and yet each and every federal district court to consider a state court ban since Windsor was decided has struck down the ban, and each and every such court has done so by relying, in pertinent part, on Windsor’s reasoning.
So regardless of whether it’s possible to distinguish Windsor as regards state same-sex marriage, will you agree that it’s not happening?
Well I like your framing of the question better as your opinion of what the court should or will do. I recognize you said “will,” but I think it’s fairly evident you’d personally agree with that.
What I would really like you to do is be less vague about your opinon and show if there’s some support for it in the law in it’s current state or it’s state at the time any specifc case we might discuss as applicable. or go on and admit that you do not have any support for it at all.
And if you’d feel more comfortable just saying less because you feel you do not have the skill or expertise to get in depth with it, but you just have a general position similar to someone else’s, a court, or whoever’s, another posters, that’s okay too, that is no sin, and I’m not going to jump all over you for it. You obviously resist that in depth analysis, degrading my analysis as a “wall of words” you won’t even bother to read but somehow still know is wrong, which you base on your apparent idea I only say so from prejudice, (which is completely flat-out wrong) and it’s no-one’s point (that I can tell) to try to force you into debating on a level you won’t agree to, for whatever reason, I don’t even need or want you to tell me why.
But you have no cause to inquire as to my personal experiences anecdotally, and then after I have told you the story of my involvement that mentions my work as a paralegal, which I have never suggested is a reason I am right, but instead gave you analysis, and then try to trap me into an argument that I am fallaciously arguing my own authority. I do not. I have none. But that does not mean that I and the some-odd million(s) of Americans who work(ed) in domestic law have a lack of knowledge in the area just because we do not have the Juris Doctor degree, or Ph.D’s in related fields, or both. The job itself serves to educate, and many times wise lawyers look to their, in fact, more learned paralegals who may not have any official credentials at all. This is no claim that I or any other paralegal is more learned than any other specifc person–lawyers and paralegals both vary accordingly.
Or that you or others be offended that I can and do speak authoritatively sometimes is unwarranted as well, simply on the grounds that I am bucking the trend of the conclusions of most dopers in a some specifc area. Anyone is welcome here to debate, not just those who have no ability or desire to speak authoritatively. That’s not the same thing as saying I am an authority–not at all–the ability to speak authoritatively is a function of knowledge on a subject and has a lot to do with how often my response is directly supported by someone who is the highest of authorities. If you had seen me time and again over many years be proven wrong, and especially if I wouldn’t admit it any or most of those times, you might have cause to adopt that attitude. But the fact of the matter is there’s three areas I have debated strongly in my history here, and two of those, Jones and Windsor, the Supreme Court ruled like I said they should if I had my way. And this one, whether state SSM bans are constitutional, is not yet determined. And I am not arguing here what the Supreme Court should do, as you are–I arguing current precedent, begging for information on the nature of Windsor’s new precedent if there is one, and how it should apply in the lower courts. But I am not going to pretend I am highly ignorant of the subject in order to satisfy arguments that my argument is wrong, well, because I’m not an authority. Good lawyers never say “it’s so because I am a lawyer” and I do not say “it’s so because I am a paralegal.”
Pretty much there’s two reasons I am here, and one big one is I do not work as a paralegal any more and I miss the debate over law that I used to engage in every day, and thus went in search of such debate here after finding other forums to be very low quality. In most areas, the straight dope is impressive–but the general trend here on this subject is woefully lacking IMHO and virtually indistinguishable from general posters on Yahoo or CNN.
I am here to tighten it up and give the Straight Dope something to be respectable over for its analysis. You’re appaerently too worried it might influence the precious public opinion that has been so carefully crafted with smoke and mirrors to let that happen.
Thus, you have given me all this grief and it boils down to you saying this is your opinion of what the Suprme Court should or will do, when it is not clear to me at all I blundered into the area of what they should or will do.
if you’d have made that clear long ago, I’d have responded your entitled to your opinion long ago and agree indeed that is what you think the court should or will do. I am glad you shared your opinion with me, thank you.
I’d really really like to get past all this bickering. I readily confess I am more annoyable than professionals in the area–but my job was never to be the polite gentleman professional explaining a case, such as Bricker and others may be–I often sat alone and did not temper my personailty as some may have to to be professional in demeanor. So, I am of course capable of being a bit childish, too or immature or whatever–but I’d like to apologize for anything appearing rude, and hope that you will agree to stop too or at least admit to understanding that you have appeared that way to me.
And this goes for anyone else who may have similar conflicts with me.
That’s the only way I’ve ever framed it. It boggles my mind that you didn’t understand that in the first place. The post I just quoted is from page 2 of this thread. Before that, I said this:
This made for pretty bizarre reading.
I’ve been clear about what I think and why and the legal basis for my opinions. I don’t know what else you want, and we just spent several pages arguing about almost nothing.
…thanks?
I am not at all worried that you will influence public opinion. I have yet to see you persuade a single person that your arguments are credible. And again, this is not the first time I’ve seen you gripe about public opinion and smoke and mirrors and propaganda. Your ill-informed complaints are (still) undercutting your claims to impartiality. You can’t claim to be unbiased and then complain on and on about propaganda and deception and suggest everybody else is cheating just because people don’t accept your arguments.
A lot of the bickering was brought on by your tone and by your misunderstanding of my posts.
I simply do not understand you. Perhaps you are saying you feel Windsor is in fact absurd? I agree it’s kinda weird, but I support the result even if the entirety of the reasoning of it isn’t clear to me.
Windsor features two government entities in disagreement over a public policy issue and whether it is equal treatment under the fifth amendment. I do not understand how a state could have two different public policies to disagree with each other with an SSM ban alone. Please illustrate or clarify.
I think absurd is too strong a word to apply to Windsor and would not have
Right, and it also was not neccessary to the ruling to declare SSM a right since the state has already done that in New York.
Oh, I agree there are a lot of Windsorish rumbles–but they are not uniform in how it applies. And I haven’t even looked at all the cases yet.
I’ve promised Not Really All That Bright to finish analysis of Kitchen, which is overdue but about ready; and I have to get back to TomnDebb’s strawman of proving pre-1990 cases though I still do not understadn the need for it; yesterday was the fourth day of spending all my spare time on these questions and frankly I needed some recreation. Hopefully Marley and I are finished; and it gets hard to keep up.
I’ll eventually work my way through all of them (the vaunted 14) I can find, and some I’ve had trouble with and can’t find yet, and I have asked, nay begged, for someone to show me any that clearly explain the Windsor doctrinal shift. Indeed it may be so that when I am done with all fourteen I might clearly identify an agreement amongst a majority of them on the same or similar reasoning, and then we’ve got something.
So far, SmithKline (not a marriage case) holds Windsor to have a doctrinal shift in the nature of applying heightened scrutiny over rational basis to sexual orientation, and argued that even if the court didn’t say so, what matters is the nature of the language the court used in deciding Windsor. I have seen the opposite said, too, that it couches itself in rational basis terms, and can see some of both but lean more to the Smithkline view. But what level of scrutiny to apply is moot if the entire question is foreclosed by Baker.
Nor can I say with confidence that sexual orientation is what kicked Windsor up to heightened scrutiny. It could be the federal denial of a state-granted right, considering that fundamental rights go all the way to strict scrutiny and therefore they may have decided less, optional rights (to be granted or not in a state’s discretion) are subject to heightened scrutiny because there is a right of some sort involved being denied by another government entity.
And then I do not undertsand why McShane in Oregon seemed concerned about waiting for the 9th circuit’s ok to use heightened scrutiny (SmithKline wasn’t final at that time, I found out) when it should not need to look further than the Supreme Court’s very final ruling in Windsor if the 9th circuit is otherwise silent on the issue.
Perhaps I am mistaken, but I don’t think the district courts need circuit court approval before implementing a recent doctrinal shift made by the Supreme Court. McShane’s reluctance to apply heightened scrutiny is a mystery to me, but perhaps he is having as much trouble as I am understanding exactly what the doctrinal shift is.
Kitchen v Herbert holds a doctrinal shift something different, rather than holding it to be a shift in the level of review, and instead says that the doctrinal shift is in an unspoken overruling of Baker. But Baker doesn’t have the same questions as Windsor, and shifts in doctrine of what level of scrutiny to apply wouldn’t change the entire foreclosure of the area of inquiry.
How many have you analyzed, and do you have my answer?