So three states ban same-sex sodomy, under laws that are no longer in force. Ok, then.
I don’t think it is 2/3rds, but in any event the subquestions show how skeptical to be of the results. People will, in the same poll, say that they support Roe, but support a ban on sex selection abortions or abortion bans at 18 weeks. So we don’t then know how that would flesh out and the most likely answer is that people were just confused about how expansive Roe was.
I think Roberts’ concurrence, a ban at 15 weeks, is probably where the middle of the country would be on this. But despite that, the polling isn’t important. Those are national polls and the viewpoints are congregated in states and regions. Okay, so 75% (making it up) want legal abortion in California. Great, done. You have it. The arguments in those cases said that the 10th Amendment says that California, even at 100% approval, doesn’t get to tell MS about its abortion laws. That is our federal system; we don’t operate on national polls.
Back to the thread, does opposition to SSM have even a majority in a single state? I don’t think it does.
Yeah, I’m not seeing it either. It wasn’t until 1994 that my state repealed the constitutional provision requiring segregated schools. It had no effect at all since Brown forty years earlier so it was largely ignored. It certainly wasn’t evidence that people really wanted segregated schools up until 1994.
Can we watch those goal posts fly by.
From no person seriously considers this to be a good idea to, OK, its part of every Republican platform but it was never an idea that they intended to put into practice, to OK just about every state has put it into practice, but they haven’t tried in the last 7 years after the court told them it was impossible, and this won’t change now that the Supreme court says that they are willing to overturn precedent on a whim. To I don’t think they have the votes.
I also think they probably don’t have the votes, but I didn’t think they had the votes to overturn Roe (I thought that they would just keep chipping away to de facto destroy it rather than de jure). So I’m not resting easy.
Obviously “no person” was hyperbole. Of course there are people for every idea. It was intended to be put in practice, back when it was permitted. Dobbs did not say, imply, suggest or anything else that the Court is now “willing to overturn precedent on a whim.” Where is your cite for this? In fact, the Court specifically said that Obergefell, Lawrence, and Griswold all had different stare decisis considerations. One Justice said that he would overrule them.
Say I was advising a state AG about the likelihood of success of a new challenge to SSM. If I was to tell him “Oh, you’ve got a real good chance. I have no evidence, but you just know what the Justices on the Court REALLY mean when they said the opposite. Republicans lie all of the time” that I wouldn’t be setting myself up for a malpractice suit and possibly sanctions to my law license?
My cite is Dobbs. It says what it holds. These are life tenured judges. If they are just corrupt liars, then why wait? Go ahead and overrule all of those cases in the Dobbs opinion.
The fact that there was a constitutional provision requiring segregated schools in the first place and that it took forty years to repeal it suggests otherwise.
I’m not following. Because five to six generations ago, at some time in the mid-1800s, wanted segregated schools then that clearly means it is a live issue that should be on the radar to possibly come back today? Does it matter that after Brown we had no massive resistance and that the Governor told the State Police, and the people on live TV that “West Virginia will comply with the law” and we did?
And the fact that there was no effort to repeal the provision for forty years when it had absolutely no effect whatsoever is a reason to believe that people wanted it enforced? Maybe people were more concerned with passing things that actually did something instead of meaningless gestures?
Me: What exactly counts as a “serious” political issue?
You: An issue talked about by significant (as opposed to minor-office low-percentage) candidates.
Me: (posts list, acquired in a minute or so on The Google, including a nominee for US House, two candidates for state governor, and a nominee for state governor)
Looks to me like reasonably direct exchanges back and forth.
So, if it’s controversial it doesn’t count as a serious political issue? This is an… interesting… definition.
(A perusal of the full story reveals that “under fire” means “the opposing candidate is attacking him for it”. Does that exclude it from counting as a “serious political issue”?)
Mississippi and Arkansas have majority opposition to same-sex marriage; in Mississippi, 55% oppose and 44% support, while in Arkansas, 52% oppose and 47% support same-sex marriage.
I imagine you would be fired on the spot for displaying such a lack of sophistication and ability to frame your own, or your opponents’, actual positions or engage with the actual substance of any part of the issue. You would I guess be suspected of being some kind of triple agent, working for a shadowy cabal whose only purpose was to somehow make everyone doubt the very idea that a legal argument with any nuance could exist. If you said that. But you wouldn’t, right?
If it was me, I would say:
- Roe fell because the right to an abortion is not deeply rooted in our nation’s history, and thus not protected by the 14th;
- The Court took pains to note that abortion is different from other rights related to “privacy,” including marriage, which meant that its decision did not have the effect of automatically overruling Obergefell, which would be (it said) entitled to “its own stare decisis analysis”;
- An argument to overturn Obergefell, thus, need only establish that, like the right to an abortion, the right to same sex marriage is not deeply rooted in our nation’s history, and that the stare decisis analysis of Obergefell weighs in favor of finding that it is not included in the broad concept of “liberty” the Constitution contemplates; and
- Recognition of same sex marriage is OBVIOUSLY NOT “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty,” and everyone knows that, and therefore the ruling was based on bad reasoning and not entitled to deference.
And I would tell that AG you go right in there and show them the Heritage docs that they themselves drafted/worked on/shot the shit with you about at bars over the last couple decades, and dare those guys to proclaim that same sex marriage is deeply rooted in our nation’s history.
This misstates the question for the Court. I agree with you that any potential future decision will not have the Court saying that the right to SSM is deeply rooted in our nation’s history. Obergefell itself did not claim it was.
Being based on “bad reasoning” alone is not, especially under Dobbs, enough to overrule precedent. It has always required more. You have the other factors, including that it doesn’t destroy what some call a fetus and what others call human life. You have reliance interests. Thousands if not millions have entered into lasting and legally recognized relationships because of Obergefell. Overruling it would cause tremendous burdens for people. It’s administrability is simple unlike Roe/Casey which sort of signed its own demise by basically saying that the state had such an important interest in protecting fetal life so long as it did not propose an undue burden which was defined as a substantive obstacle. For 20 years, as Scalia predicted, that was hopelessly incapable of any reasoned judicial application, and it caused a confused and always split jurisprudence that did not hold from one case to the next.
Obergefell is super-easy in its application. Whereas previously you had to see an “M” on the sex box of one side of the marriage application and an “F” on the other, under Obergefell, you just don’t look at those boxes. There was no countervailing interest of the state to protect traditional marriage as this was viewed as a bare desire to harm and deprive gay couples of their dignity. Roe/Casey talked extensively about how it was a powerful state interest to protect potential/actual life.
The cases are just night and day for the doctrine of stare decisis. And although Thomas, who really doesn’t believe in stare decisis, would then naturally overrule it simply based on his view that it was wrongly decided, his thoughts have not carried any other Justice on the Court.
Of course, you can say, “Never mind all that. They will do it anyways” but at least I’ve told you the rationale that they stated, and then the clear observation that resistance to Obergefell has nowhere near the continuing force that opposition to Roe had.
You’re just kind of opining on various themes without committing to any specific premise. The “continuing force” of a thing 50 years long is greater than the “continuing force” of a thing that is 7 years long, yes, certainly. I do not know why anyone would care about that. All that needs to happen is one interested party bringing one lawsuit. We have moved on from the idea that there are no interested parties. I am discussing what would happen if they did that. Not continuing forces.
You don’t think they’ll do it. OK, that’s cool. I do not know which of the things you’ve said up to this point in the thread you still believe are accurate reflections of the reality, but if you want to learn why they are not, there are other posts up there also. Doesn’t seem rewarding for anyone to keep checking in with you about which premises you’re sticking to and which you’ve abandoned.
Which exactly describes the position of abortion pre-Dobbs and we all know how that turned out. Also while Alito specifically says that abortion is different than certain other rights he doesn’t explicitly say that those rights are safe. As Jimmy_Chitwood pointed out its easy to re-craft an argument to say that Gay marriage, or any other right that they decide not to like is also somehow different. That clause is put in there because he realized that totally getting rid of all stare decisis and uninumerated rights would get rid of a whole slew of stuff some of which they might want to keep, like say, the ability the flout vaccine requirements. So they want to be able to handle them on a case by case basis rather than make a decision that eliminates them wholesale.
Finally I would point out that for a elected attorney general in a bright red state, the likelihood that a case will fail is only tangentially related to whether or not the decide to try it. So long as the fights the good fight to quash the liberals it doesn’t matter so much whether he wins or loses.
Maybe this explains it:
