OK, you’re saying, “But I think my characterization of what he actually said is pretty indisputable.”
Your characterization is your speculation of why Scalia phrased his questioning in that way. You’re taking Scalia’s question out of context. Scalia said that he “takes no position” on the issue so his intention would not be to give his personal opinion of the fitness of gay couples to raise children but to solicit a relative response from Cooper.
You assume that Scalia is lying when he says he “takes no position” on that issue. For me to believe that your characterization/speculation is indisputable, you’ll have to provide some evidence that Scalia was lying when he said he “took no position” on that particular issue.
If DOMA is overturned and Perry is limited to CA, which I think is likely, the next step is making SSM legal everywhere. A couple will get legally married in CA or NY and move to TX or something and want their marriage recognized there. Loving is the precedent. If all goes well, maybe five years down the line we’ll have SSM in the whole country.
Neither. Scalia said he takes no position on that issue. What he’s attempting to do is solicit a response from Cooper to further claify the questions being asked by the Justices.
If you believe that Scalia was lying when he said he take’s no position on that issue, what difference does it make to you how any of his questions are paraphrased?
You really don’t understand what I’m saying? I’m referring to one part of my post as “my characterization of what Scalia said” That part of my post is:
I think that is, pretty much indisputably, an accurate characterization of what Scalia said. That is the only part of my post that I referred to with the word “indisputable”.
I’m referring to another part of my post as “my speculation”. That was the part where I said that Scalia knows about the research that shows same-sex couples are just as good parents as anyone else, and is choosing to ignore it. Basically pretending there’s a lot more uncertainty about this question (among social scientists) than there actually is. That’s what I claimed was “disingenuous”. I can’t prove he isn’t merely ignorant of this research, but I suspect he isn’t.
Contrary to what you say, I don’t assume Scalia is lying when he says he “takes no position”. I think he is “taking no position” because he knows the position he would like to take is not actually supported by the research, and he figures he can get the same result by just saying “Well, it could be true.”
I bet that California’s governor not defending prop 8 will be a major issue since, it SCOTUS accepts it, the will have created an enormous loophole for all such constitutional ammendments.
So it’s your opinion/characterization/speculation that Scalia isn’t lying when he says he takes no position on the issue but that’s not what he meant to say or would like to have said??? You’re implying that he wasn’t telling the truth. But he wasn’t lying???
It’s my position that Scalia meant exactly what he said when he stated that he takes no position on that issue.
It’s my position that all of the Justice’s questions to Cooper, as well as to the other lawyers, were phrased and rephrased (and repeated) to elicit a specific or more direct response from the lawyers. I consider the questions to be an attempt to clarify the issues before the court.
There are 2 cases regarding same sex marriage before the court. Today they are hearing about the DOMA, which the current Obama administration is not defending before the court, while the administration continues to enforce the DOMA.
It is problematic that the attorney general of California will not defend Prop 8, which is the law of California at this time. And that the US attorney general is enforcing the DOMA but refusing to defend the act before the Supreme Court.
That posits the whole issue as one that will not be decided, a hot potato to kick down the road.
If Prop 8 is a legally passed law in Calif, should be defending the measure before the court. If DOMA is a legal federal law then the administration should be defending that law before the court.
Both seem to want to punt the ball to the Supremes to decide and I think in the end the Supremes are going to send it all right back.
I feel like you’re deliberately not understanding me.
I didn’t say he was lying, I said he was being disingenuous.
The part I felt was disingenuous is where Scalia said, essentially, “Maybe same-sex marriages harm children, maybe they don’t, nobody knows.” We do know. Same sex parents do as well as any other parents. I suspect Scalia knows this.
Also, contrary to your claim, Scalia’s line of questioning wasn’t an attempt to “elicit a specific or more direct response from the lawyers”. He was very explicitly providing an argument he felt the lawyer should have made, and said essentially “I don’t know why you aren’t saying this”.
If you go read the Majority opinions that he wrote for both Romer and Lawrence I think that is obvious.
Section III of DOMA is just dead IMHO, outside of some rebuke that it is not being pushed by the appropriate branch I think it is just gone.
As for Prop 8, applying it to states that have civil unions would only effect 7 states, and while it may have a chilling effect I think that is the most likely.
I think the real conflict Kennedy has is if the immutability justifies more than “rational with bite” scrutiny.
But, as everyone realizes, he is the swing vote, he is the one that both sides need to convince. I am smart enough to know I am too dumb to know what they are going to deliver but if they don’t punt both of these cases I am quite confident that section 3 of DOMA will be gone and California will have SSM.
Article VI of the U.S. Cpmstitution is your answer.
while SCOTUS is the final arbiter of what is constitutionally permissible, every Federal and AFAIK every State elected or high appointed official, whether legislative or executive, takes an oath to uphold “the law of the land,” “tje Constitution and laws,” or similar wording. No ;egislator is supposed to vote for a law he believes to be unconstitutional; no executive official is supposed to enforce one which he believes to be unconstitutional. If, say, Oklahoma has somewhere in its musty session laws a requirement that all schoolchildren recite the Pledge of Allegiance at the beginning of each school day, and some uberpatriotic group unearths that law, the State Education Department and any school district will be within its grounds to refuse to enforce it, as such a law was declared unconstitutional before Pearl Harbor.
Why couldn’t this have happened any time since Massachusetts legalised SSM in 2004? Or are you thinking the Court might strike down section 2 of DOMA (interstate recognition) as well as section 3 (federal recognition)?
The Windsor case involved two women who were married in Canada and lived in New York, which at the time recognized SSMs from other jurisdictions as valid marriages under state law. The case only deals with Section 3 of DOMA, which says that the federal government cannot recognize SSMs for federal purposes. The holding from the Court of Appeals was that because the state in which Ms. Windsor resided recognized the marriage as valid for state law purposes, the federal government should have done so for federal estate tax purposes.
Since Windsor involved a SSM recognized as valid under state law, the case does not implicate Section 2 of DOMA, which says that states do not have to recognize or give full faith and credit to SSMs from jurisdictions that permit SSM.
Unless the Supreme Court decides in Perry that banning SSM is unconstitutional in all states, it is extremely unlikely that this particular case will affect Section 2 of DOMA. If, however, Windsor holds that a state-recognized SSMs of a citizen of that state must be recognized as valid for federal purposes, it is inevitable that another case brought by someone who entered into a SSM in a jurisdiction that recognizes them but who lives in a state that does not will bring a case, which will reach the Supreme Court a few years down the line.
