Roe was decided narrowly? Sometimes cases are decided narrowly and sometimes they are not. A ruling enforcing SSM on all 50 states would not be narrow ruling.
He’s not comparing homosexuality to murder. Her’s making a point about laws being based on morals, which some like to claim is not the case.
As for the other activities, I see no difference between a societal prohibition on SSM, incest or polygamy. It’s only society’s “ick factor” that makes one and not the other taboo. The only place where Scalia and I part company is that he is warning against a logical conclusion of legalizing SSM, and I’m saying “so what”? But we both agree that one cannot be logically separated from the other without allowing that the law should reflect societal norms of appropriate behavior. The law being that which derives from the legislature.
When I say that cases are decided narrowly on a case by case basis, I mean that legal analogies are taken from the same or a very close field, you do not try to compare murder to voting rights and draw conclusions from that. To say that a ruling on murder will affect civil rights is pure amateur hour. So is making the comparisons Scalia routinely makes comparing the morality of gays to murder and drug use is entirely gratuitous. Using such comparisons in the same sentence is worthless in enlightening the legal thinking process. It isn’t a legal argument at all and has no place in a legal opinion and would be laughed out of even small claims court.
Roe, now that it is mentioned, is a fine example. It was not based on cases that were not about contraception, but on cases like Griswold v. Conn. on the basis of privacy, not morality. And a whole string of such cases. The reason conservative non-lawyers conflate Roe with murder is because they ignore that the right of privacy has nothing to do with murder, and you cannot extend your personal morality to make something murder that has never been murder just to get around privacy rights, which is what anti-abortion laws do. Let me repeat: you cannot take away the right of the people to have privacy to do something they have been doing for thousands of years (read the long version of Roe v. Wade) by saying that you now morally consider it to be murder.
The correct way to take away the right to have an abortion isn’t to start calling it a murder, but to amend the constitution to specify that you are removing the right to abortion from the areas that were private. The people who oppose abortion have never been able to convince legislators to do that, but legislators have been willing to raise money by suggesting that they might do that, but they would rather appoint “conservative” judges. (It’s an aside, but they would rather appoint conservative judges and keep the issue to raise money and keep their coalition. If they really wanted to outlaw abortion, they’d introduce a Constitutional amendment and see how it went. They get a cash cow out of not resolving the issue, plus a coalition.)
Suddenly in the late 19th century rhetoric began to call abortion murder. But it was never punished as murder, but as something much less serious. Abortion does legitimately have something to do with morals, and in certain moral systems, has the religious equivalence of murder, or the moral equivalence, but that is entirely for purposes of morality against abortion, only very few fringe people suggested the death penalty or life in prison for abortion providers/providees when it would certainly be premeditated first degree if they really meant it. For the purposes of legal rights, it falls within privacy, and privacy to a certain extent trumps the right of the government to regulate it.
Our jurisprudence isn’t about morality at least as far back as Coke and Blackstone. It is about what is clearly written in the laws and the clear traditions when they weren’t written in the laws and the limits on the powers of the sovereign to change those laws and the rights dating back to the Magna Carta. When deciding a case, that case is decided, and if it has something new or not contemplated by the legislature, then reasoning from a close area of the law is applied. You don’t apply drug interdiction laws to figure out civil rights. It is just stupid.
IMO: Perry will be decided very narrowly by a majority, tailored to apply only to the specific situation in California. There may be a concurence agreeung with the District Court’s holdings, but it won’t get a majority.
Windsor will overturn Section 3 of DOMA. HOW it’s written will be the interesting part.
Yes, but depending on how much of DOMA they abrogate in this upcoming case, the basis for doing so will actually exist. As DOMA stands, such suits have no real chance of succeeding, because DOMA says that states don’t have to acknowledge marriage equality from other states. Assuming they take a broad view of DOMA’s unconstitutionality, that bar will fall away and the route for those kind of suits will be open.
I broadly agree with the OP on how it will shake down. And there’s no way in hell they rule that all states must adopt SSM. Can you imagine the “activist judges!” backlash from the far right if they did?
Any odds on Thomas actually saying something this time around? Now that he’s demonstrated that he can actually speak in court without Scalia’s hand up his ass, he may try again. But I’m betting that he won’t.
Well, arguments are over on the Prop 8 case, and it’s looking like standing is going to be the prevailing issue. SCOTUSblog thinks it’s likely that they’ll DIG (Dismiss as Improvidently Granted), which will make marriage equality the law in California alone.
Tomorrow is really the big deal of the two (for anyone outside CA, anyway). I keep trying to project “Taney” into Roberts’s head (as in “if you decide for DOMA, you’ll be this century’s Taney”), but I don’t think that’s working any better than praying.
As I see it, this allows any state’s executive to scuttle a particular law by simply refusing to defend it. If a state law – or constitutional provision – is properly passed and then challenged, can the governor kill the law by simply declining to defend it? It seems to me a no-standing decision here makes that course possible.
Kennedy has already expressed unease at the prospect of a ballot initiative being invalidated because a state refuses to defend it in court. If I were a Supreme, I’d rule that the constitution is silent on the issue of SSM and that each state is free to amend their constitutions as they see fit to either permit or prohibit it, thus ruling Prop 8 valid. But I’m not a Supreme, and they’ll probably find some way to side step the issue entirely.
DOMA is a goner, though. Probably 6 -3/7 - 2. Scalia will probably write a scathing dissent pointing out the hypocrisy of the court in dealing with Federal law.
I think the standard of review applied is going to be more important than the actual outcome. We can’t go on with “slightly elevated” scrutiny for ever.
That’s a matter for individual states to resolve. California provides two mechanisms to deal with state officials (the Gov & AG) who failed to perfom their duties; they can be impeached & removed from office by the state legislature, or they can be recalled by the people. Neither of which happed (in fact Californians elected that AG to the Gov’s office).
It all brings up what “a republican form of government” really means; something which SCOTUS has never addressed. Clearly states have no obligation to allow popular inititiaves (most don’t), or even require referenda to amend their own constitutions (though I think all do). Some states don’t allow the Gov a veto at all (or allow overides by simple majority), and I doubt it would be unconstitutional if one gave it’s Gov an absolute veto. Hell states don’t even have to have governors at all.
I am not a constitutional law expert, but it seems to me that “make SSM legal in CA but not anywhere else” is at best a punt that’s going to come back to haunt the Supreme Court in 4-5 years, when a legally married CA couple moves to AZ and sues on equal protection/full faith and credit grounds. I can’t imagine that the justices would want to deal with the heartache of hearing the exact same case twice in a decade.
Neither mechanism is sufficient to correct the problem. A court case challenging the constitutionality of a statute is not put on hold pending the outcome of a future election, or a recall. If a plaintiff files a challenge, his challenge must be answered. Indeed, if the governor refuses to defend the statute, who would standing, in your view, to step in and ask for a delay to allow a recall or intervening election to happen?
Nah, I agree with Bricker. As a matter of policy, you can’t say that a law passed by a majority of the citizens at a regularly held election has absolutely no one with standing to defend it.