Baker v. Nelson: The case y'all don't want to talk about

[WorldWatcher]

That argument is idiotic. According to your theory, if a state raises the drinking age to 21, then the people have exercised the right to drink at age 21. Therefor the state can never lower the drinking age again. Even a 5-year-old can see the utter fallaciousness of that theory.

That's a pretty dumb statement.

If the State has 21 as the drinking age and then attempts to lower it, say to 18, then those that are 21 would still be able to drink.

Even a 5-year old would now that by lowering an age when you are allowed to start doing something that does not stop those over that age from doing it.


*********************************

On the other hand, if the state has a drinking age of 21 and then attempts to lower it, but only for males, then they would run into gender equality issues. If challenged, in accordance with the right to bring grievance against the government embodied in the 1st Amendment, then the state would need to provide a compelling government interest to justify such a discriminatory law.



>>>>

I didn't state that correctly. It should say, "if the state lowers the drinking age from 21 to 18, then it can't raise the age back to 21." It makes no matter whether it does it "only for males." According to you, once people have "exercised a right," the state can never revoke it. That idea is simply idiotic.

That's not what I said. Here is what I said:

"Baker doesn't apply to the Prop 8 case because it isn't a case attempting to justify same-sex civil marriage on a constitutional basis - the premise of the SCOTUS review will be the question of the 9th's ruling that says once the people have exercised a right, can that right be taken away by a referendum target that group."

Fixing the grammatical error in the last line it becomes (change underlined for clarity):

Baker doesn't apply to the Prop 8 case because it isn't a case attempting to justify same-sex civil marriage on a constitutional basis - the premise of the SCOTUS review will be the question of the 9th's ruling that says once the people have exercised a right, can that right be taken away by a referendum that targets a specific group.​

Of course the people can vote to take a away a right, rights are restricted all the time through legislative and initiative processes. That last line is important though because it highlights a fundamental difference between what I said and what you think I said.

If a right is to be taken away, then the government bears a heavy burden of responsibility to justify the (a) the compelling government interest in such a taking by treating like groups differently, (b) that the intent of the law has general applicability and was not instituted for animus, invidious, and capricious reasons against a targeted group, and (c) that the manner of taking was the least restrictive possible.

Prop 8 fails on two counts as there is no compelling reasons for treating law abiding, tax paying, US Citizen, infertile, non-related, consenting, adults in a different-sex couple differently then treating law abiding, tax paying, US Citizen, infertile, non-related, consenting, adults in a same-sex couple. Secondly the law clearly targeted same-sex couples because for invidious reasons to create unfair discriminatory separation.



>>>>

 

[Qball]

The state has to give a good enough reason because equal protection issues are involved.

There are no good reasons, so equal protection has to prevail.

There aren't any equal protection issues involved. It's not like married people are moreso protected than single people, because if they were, it would be unconstitutional for the government to recognize "marital status" altogether. I can see how it's an "equality" issue for some, though I don't necessarily think that's a matter for the courts, but the "equal protection" doctrine has a specific meaning. The Lovings faced imprisonment, fines, and banishment from the state if convicted under Virginia's anti-miscegenation law. Other cases like Redhail and Turner, that also found a fundamental right to marry, revolved around laws intending to punish, like denying a marriage license to someone in arrears for child support and denying a prisoner the right to marry. The state simply defining marriage as one thing, and not as something else, isn't a matter of equal protection.

There are many federal benefits that are based on marital status. A state that is arbitrarily defining marriage as a union between one male human and one female human is discriminating against the same sex union without being able to offer any relevant cause for doing so -

thus the definition is discriminatory by sexual orientation.

Everything that is legal in a heterosexual relationship outside of marriage is legal in a homosexual relationship, therefore,

the state can claim nothing in regards to any specific unique characteristics of a same sex union that gives the state any compelling reason or justification to legally discriminate against such a relationship.

Defining "marriage" as "the union of a husband (a man) and a wife (a woman)" is not arbitrary. It predates even the federal constitution. Like I said, we can't quarterback traditional marriage into being a reaction to the notion of same-sex marriage. If anything, same-sex marriage is a reaction to traditional marriage.

No statute or marriage amendment says anything about sexual orientation, and like I said before, it isn't true that there is no good or relevant reason for the state to define marriage in one such way and not another. I mean, even if we were to say marriage is the union of any two people, that could still be seen as an arbitrary distinction that is exclusive to some and inclusive to others. If you submit to even one restriction on who can marry whom, you're creating an arbitrary distinction that might exclude someone's preference for a spouse. But see, words matter, and if something means essentially everything, it actually means nothing. So we can't start complaining about lines drawn in the sand, when that's all we can do.

 

[Qball]

Baker was dismissed in 1972, at that time there was no federal question, the federal government recognized ALL Civil Marriages entered into under State law.

In 1996 DOMA was passed changing that situation, at that point the federal government start picking and choosing which legal, valid, Civil Marriages it would recognize based on the gender composition of the couple. DOMA changed the legal landscape so that now there is a valid federal question.

At least 4 Justices in the SCOTUS agrees with that as this week they will hear oral argument pertaining to selective recognition based on gender under Section 3.


>>>>

You're reiterating what I already addressed as being false. The lack of a substantial federal question pertained the the federal constitution, meaning that, at least as far as the Prop 8 case is concerned, there is no federal question. DOMA, on the other hand, pertains to federal recognition of marriages by certain states. If it isn't unconstitutional for an individual state not to recognize same-sex marriage, I'm not sure how the federal government is somehow required to do so.

There is. In California, an initiative took away rights already granted by the legislature.

No, it didn't.

 

[Katzndogz]

It's always struck me as interesting how gay marriage proponents are quick to bring up Loving v. Virginia as if that's all they need to make their point about gay marriage being a civil right.

The main reason Loving doesn't pertain is because race and sexual orientation are not the same, not philosophically, biologically, or in this case, jurisprudentially, as the court has never found sexual orientation to require as high a level of review as race. Furthermore, anti-miscegenation laws were criminal statutes that carried jail time, fines, and other penalties. With same-sex marriage, it's just not of the law in most states. You're not going to be locked up because you have a legal same-sex marriage in another state.

But, the biggest thing that stands out is there is actual Supreme Court precedence on the exact question of gay marriage: Baker v. Nelson.

Basically, it was a case in 1972 (five years after Loving v. Virginia) where a couple went to court in Minnesota to say that for the state to recognize straight marriage but not gay marriage was in violation of the 9th and 14th amendment. Minnesota found no right to same-sex marriage and because of the circuit it was in, it was up for mandatory review by the Supreme Court. The Supreme Court dismissed the case, "for want of a substantial federal question", and thus is binding precedence.

Now, of course, some people who think they're clever will say that it's only binding on cases that are exactly the same as the case they dismissed. It's not as strict as that -- precedence rarely is -- but isn't it funny that gay marriage proponents will reach back to Loving as being directly on the nose and completely bypass Baker, a case in which the Supreme Court, and most likely the exact same Court that struck down anti-miscegenation laws, also dismissed the claim that same-sex marriage is a constitutional right?

The court can make standing on the doctrine that finds standing when the issues are capable of repetition yet evade judicial review. In other words, the same issues come up over and over, but cannot ever reach the level of a place where the justices can judge. This was the basis of Roe v. Wade. By the time the case came before the Supreme Court, Jane Roe's baby had already been delivered and the issue of abortion for her was moot. Roe wasn't pregnant and not subject to abortion. She lacked standing. But because the issue would arise over and over, the court found it necessary to find standing.

 

[Qball]

Baker was dismissed in 1972, at that time there was no federal question, the federal government recognized ALL Civil Marriages entered into under State law.

In 1996 DOMA was passed changing that situation, at that point the federal government start picking and choosing which legal, valid, Civil Marriages it would recognize based on the gender composition of the couple. DOMA changed the legal landscape so that now there is a valid federal question.

At least 4 Justices in the SCOTUS agrees with that as this week they will hear oral argument pertaining to selective recognition based on gender under Section 3.


>>>>

You're reiterating what I already addressed as being false. The lack of a substantial federal question pertained the the federal constitution, meaning that, at least as far as the Prop 8 case is concerned, there is no federal question. DOMA, on the other hand, pertains to federal recognition of marriages by certain states. If it isn't unconstitutional for an individual state not to recognize same-sex marriage, I'm not sure how the federal government is somehow required to do so.

You provided your opinion that it was false, that doesn't mean it was false.

Baker doesn't apply to the Prop 8 case because it isn't a case attempting to justify same-sex civil marriage on a constitutional basis - the premise of the SCOTUS review will be the question of the 9th's ruling that says once the people have exercised a right, can that right be taken away by a referendum target that group.

The background of the case being murkier and less straightforward doesn't change the issue before the court, which is in fact almost identical to the one in Baker, with the only difference being the federal DOMA issue included.

The 9C tried to argue there's some constitutional issue because of the way in which this case came to be, but at the end of the day, it's sophistry. The people have the right to amend their constitution. Every state and the federal government has an outline for doing that. It's not some "special circumstance" because the California Supreme Court found a right to same-sex marriage (leaving aside the merits of their finding), and then the people turned around and constitutionalized a provision stating there isn't. I get that it's unsettling to essentially have a right taken away, but when that right exists due to judicial fiat, you run the risk of being outdone by a vocal majority willing to amend their constitution.

Regarding the DOMA case, it's not about an individual state no recognizing same-sex marriage. It's about the federal government recognizing legally valid Civil Marriages from a State that DOES recognize Civil Marriage. If the federal government recognized NO Civil Marriages from that state, that would be one thing. It is something else to selectively recognize only certain Civil Marriages based on the gender composition of the couple.



>>>>

Two things: 1) understand that DOMA existed eight years before the first state ever legalized same-sex marriage, so this isn't some reactive measure taken because a state legalized SSM, and 2) the federal government can decide what types of marriages it wishes to recognize. Just because one state decides to legalize a form of marriage doesn't mean they can force another state to recognize the same thing, and they surely cannot force the federal government to recognize it. Up until recently the federal government recognized all state marriage laws given they didn't vary much outside of marriageable age. But when it was clear that states were considering legalizing other forms of marriage, the government drew its line in the sand.

 

[Seawytch]

You're reiterating what I already addressed as being false. The lack of a substantial federal question pertained the the federal constitution, meaning that, at least as far as the Prop 8 case is concerned, there is no federal question. DOMA, on the other hand, pertains to federal recognition of marriages by certain states. If it isn't unconstitutional for an individual state not to recognize same-sex marriage, I'm not sure how the federal government is somehow required to do so.

There is. In California, an initiative took away rights already granted by the legislature.

No, it didn't.

Sorry, by the state Supreme Court. Either way, Prop 8 took away rights already granted.

 

[WorldWatcher]

You're reiterating what I already addressed as being false. The lack of a substantial federal question pertained the the federal constitution, meaning that, at least as far as the Prop 8 case is concerned, there is no federal question. DOMA, on the other hand, pertains to federal recognition of marriages by certain states. If it isn't unconstitutional for an individual state not to recognize same-sex marriage, I'm not sure how the federal government is somehow required to do so.

You provided your opinion that it was false, that doesn't mean it was false.

Baker doesn't apply to the Prop 8 case because it isn't a case attempting to justify same-sex civil marriage on a constitutional basis - the premise of the SCOTUS review will be the question of the 9th's ruling that says once the people have exercised a right, can that right be taken away by a referendum target that group.

The background of the case being murkier and less straightforward doesn't change the issue before the court, which is in fact almost identical to the one in Baker, with the only difference being the federal DOMA issue included.

The 9C tried to argue there's some constitutional issue because of the way in which this case came to be, but at the end of the day, it's sophistry. The people have the right to amend their constitution. Every state and the federal government has an outline for doing that. It's not some "special circumstance" because the California Supreme Court found a right to same-sex marriage (leaving aside the merits of their finding), and then the people turned around and constitutionalized a provision stating there isn't. I get that it's unsettling to essentially have a right taken away, but when that right exists due to judicial fiat, you run the risk of being outdone by a vocal majority willing to amend their constitution.

Change the situation and ask yourself the same question again.

States barred interracial marriage and they were eventually found unconstitutional. States are barring marriage now based on gender. Both are biological conditions which are immutable. Neither is a compelling reason to bar equal treatment.

Regarding the DOMA case, it's not about an individual state no recognizing same-sex marriage. It's about the federal government recognizing legally valid Civil Marriages from a State that DOES recognize Civil Marriage. If the federal government recognized NO Civil Marriages from that state, that would be one thing. It is something else to selectively recognize only certain Civil Marriages based on the gender composition of the couple.



>>>>

Two things: 1) understand that DOMA existed eight years before the first state ever legalized same-sex marriage, so this isn't some reactive measure taken because a state legalized SSM, and 2) the federal government can decide what types of marriages it wishes to recognize. Just because one state decides to legalize a form of marriage doesn't mean they can force another state to recognize the same thing, and they surely cannot force the federal government to recognize it. Up until recently the federal government recognized all state marriage laws given they didn't vary much outside of marriageable age. But when it was clear that states were considering legalizing other forms of marriage, the government drew its line in the sand.

DOMA was passed in 1996 specifically because Hawaii **MIGHT** have legalized Same-sex Civil Marrige based on a court actions. The case started in 1991 and wasn't finalized until 1998 because of a Hawaii Constitutional Amendment which mooted the court case which was finally closed in 1999.

DOMA was passed not prior to Same-sex Civil Marriage based on defining a long term view, it was passed as a - well - per-emptive strike to target same-sex couples because they **MIGHT** can legal Civil Marriage in one state.



>>>>

 

[Qball]

There is. In California, an initiative took away rights already granted by the legislature.

No, it didn't.

Sorry, by the state Supreme Court. Either way, Prop 8 took away rights already granted.

But whose fault is that? I don't mean that to sound petulant, but like I said, when you use judges to create rights out of whole cloth, you run the risk of the people coming back and amending the constitution to clarify that this thing is not a right at all. Had the proponents of same-sex marriage waited a few more years until there was a clear, consistent majority willing to legalize SSM, they could put the issue up for a vote and CA would likely have affirmed it. Instead, they wanted to do an end-run around the popular vote figuring that if it's just legalized, the people wont be motivated to "take their rights away" and it would stay in place. It was a gamble that failed.

 

[Qball]

You provided your opinion that it was false, that doesn't mean it was false.

Baker doesn't apply to the Prop 8 case because it isn't a case attempting to justify same-sex civil marriage on a constitutional basis - the premise of the SCOTUS review will be the question of the 9th's ruling that says once the people have exercised a right, can that right be taken away by a referendum target that group.

The background of the case being murkier and less straightforward doesn't change the issue before the court, which is in fact almost identical to the one in Baker, with the only difference being the federal DOMA issue included.

The 9C tried to argue there's some constitutional issue because of the way in which this case came to be, but at the end of the day, it's sophistry. The people have the right to amend their constitution. Every state and the federal government has an outline for doing that. It's not some "special circumstance" because the California Supreme Court found a right to same-sex marriage (leaving aside the merits of their finding), and then the people turned around and constitutionalized a provision stating there isn't. I get that it's unsettling to essentially have a right taken away, but when that right exists due to judicial fiat, you run the risk of being outdone by a vocal majority willing to amend their constitution.

Change the situation and ask yourself the same question again.

States barred interracial marriage and they were eventually found unconstitutional. States are barring marriage now based on gender. Both are biological conditions which are immutable. Neither is a compelling reason to bar equal treatment.

I'm getting a little tired of explaining the same thing over and over, dude. Anti-miscegenation laws were criminal statutes, which were found unconstitutional because they were laws that restricted who someone could marry on the basis of race.

The state defines marriage as a man and woman, which isn't the same as the state saying "marriage isn't the union of two men or two women", this is the affirmative definition. There are no criminal sanctions on gay couples, and while race is not essential to the purposes of marriage, gender is. It always has been. "Fundamental to our very existence and survival"...remember that line?

Regarding the DOMA case, it's not about an individual state no recognizing same-sex marriage. It's about the federal government recognizing legally valid Civil Marriages from a State that DOES recognize Civil Marriage. If the federal government recognized NO Civil Marriages from that state, that would be one thing. It is something else to selectively recognize only certain Civil Marriages based on the gender composition of the couple.



>>>>

Two things: 1) understand that DOMA existed eight years before the first state ever legalized same-sex marriage, so this isn't some reactive measure taken because a state legalized SSM, and 2) the federal government can decide what types of marriages it wishes to recognize. Just because one state decides to legalize a form of marriage doesn't mean they can force another state to recognize the same thing, and they surely cannot force the federal government to recognize it. Up until recently the federal government recognized all state marriage laws given they didn't vary much outside of marriageable age. But when it was clear that states were considering legalizing other forms of marriage, the government drew its line in the sand.

DOMA was passed in 1996 specifically because Hawaii **MIGHT** have legalized Same-sex Civil Marrige based on a court actions. The case started in 1991 and wasn't finalized until 1998 because of a Hawaii Constitutional Amendment which mooted the court case which was finally closed in 1999.

DOMA was passed not prior to Same-sex Civil Marriage based on defining a long term view, it was passed as a - well - per-emptive strike to target same-sex couples because they **MIGHT** can legal Civil Marriage in one state.



>>>>

So what's your point? I said it was legalized before any state legalized same-sex marriage, and it was. I know the issue with Hawaii was the impetus for DOMA, though I think it was mostly about protecting the other states that did not want to recognize SSM than making sure no state did, and because of the litigation agenda.

 

[WorldWatcher]

No, it didn't.

Sorry, by the state Supreme Court. Either way, Prop 8 took away rights already granted.

But whose fault is that? I don't mean that to sound petulant, but like I said, when you use judges to create rights out of whole cloth, you run the risk of the people coming back and amending the constitution to clarify that this thing is not a right at all. Had the proponents of same-sex marriage waited a few more years until there was a clear, consistent majority willing to legalize SSM, they could put the issue up for a vote and CA would likely have affirmed it. Instead, they wanted to do an end-run around the popular vote figuring that if it's just legalized, the people wont be motivated to "take their rights away" and it would stay in place. It was a gamble that failed.

On this we can agree. While we can argue the merits (or lack there of) of the Prop 8 case - I think that concerning Same-sex Civil Marriage (SSCM) the Prop 8 challenge was a tactical error.

If not for the Prop 8 case, California would probably already have SSCM. The historical shift in attitudes and voter response in general had shown a trend of more acceptance. In California alone Prop 22 (Statutory Law) passed by 23% and then just 8-years later Prop 8 barely squeaked by with only 2.5%.

There would have been much, MUCH more political capital, in a strategic sense, to have been gained from resubmitting to a vote and having Prop 8 repealed at the ballot.



>>>>

 

[Seawytch]

Sorry, by the state Supreme Court. Either way, Prop 8 took away rights already granted.

But whose fault is that? I don't mean that to sound petulant, but like I said, when you use judges to create rights out of whole cloth, you run the risk of the people coming back and amending the constitution to clarify that this thing is not a right at all. Had the proponents of same-sex marriage waited a few more years until there was a clear, consistent majority willing to legalize SSM, they could put the issue up for a vote and CA would likely have affirmed it. Instead, they wanted to do an end-run around the popular vote figuring that if it's just legalized, the people wont be motivated to "take their rights away" and it would stay in place. It was a gamble that failed.

On this we can agree. While we can argue the merits (or lack there of) of the Prop 8 case - I think that concerning Same-sex Civil Marriage (SSCM) the Prop 8 challenge was a tactical error.

If not for the Prop 8 case, California would probably already have SSCM. The historical shift in attitudes and voter response in general had shown a trend of more acceptance. In California alone Prop 22 (Statutory Law) passed by 23% and then just 8-years later Prop 8 barely squeaked by with only 2.5%.

There would have been much, MUCH more political capital, in a strategic sense, to have been gained from resubmitting to a vote and having Prop 8 repealed at the ballot.



>>>>

Except that Civil Rights aren't supposed to be up for majority opinion.

 

[WorldWatcher]

But whose fault is that? I don't mean that to sound petulant, but like I said, when you use judges to create rights out of whole cloth, you run the risk of the people coming back and amending the constitution to clarify that this thing is not a right at all. Had the proponents of same-sex marriage waited a few more years until there was a clear, consistent majority willing to legalize SSM, they could put the issue up for a vote and CA would likely have affirmed it. Instead, they wanted to do an end-run around the popular vote figuring that if it's just legalized, the people wont be motivated to "take their rights away" and it would stay in place. It was a gamble that failed.

On this we can agree. While we can argue the merits (or lack there of) of the Prop 8 case - I think that concerning Same-sex Civil Marriage (SSCM) the Prop 8 challenge was a tactical error.

If not for the Prop 8 case, California would probably already have SSCM. The historical shift in attitudes and voter response in general had shown a trend of more acceptance. In California alone Prop 22 (Statutory Law) passed by 23% and then just 8-years later Prop 8 barely squeaked by with only 2.5%.

There would have been much, MUCH more political capital, in a strategic sense, to have been gained from resubmitting to a vote and having Prop 8 repealed at the ballot.



>>>>

Except that Civil Rights aren't supposed to be up for majority opinion.

Chief, I'm talking tactics and strategic advantages.

If Prop 8 win's at the SCOTUS, it will setback SSCM in California. If Prop 8 looses at the SCOTUS it might mean SSCM's will again resume in California, but could also result in a politcal backlash because of the courts involvement.

First you won in the courts...

.........Then you won in the legislature.

.................Last fall you began winning at the ballot box.



Strategically speaking winning California at the ballot box could and would have a HUGE impact on the furtherance of acceptance at the national level.



>>>>

 

[Procrustes Stretched]

Enough with the full faith and credit

How was Loving v Virginia decided?

 

[Procrustes Stretched]

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court. The court can't grant rights; they're supposed to interpret the constitution to protect them. The fact that this line is so prevalent really just proves that they went to the state Supreme Court to have them create a right out of whole cloth, not uphold the constitution as it is.

The people have the final say in CA to amend their constitution. Because the court ruled one way, the people voted another way, and the court didn't want to stay their ruling until the issue was resolved at the ballot box, people think this mess is somehow the fault of Proposition 8.

Complete imbecility. Nothing could be further from the truth. Asking to have a right recognized and protected, a right other people have, is not asking to have a new right created no matter how you cut, slice, or dice it.

In Goodridge v. Dept. of Public Health. Massachusetts Supreme Judicial Court Chief Justice Margaret Marshal ruled the anti-equality bigots could amend the Constitution. They tried and failed. Even if they had won, a conflict would have ensued where a state cannot have a Constitutional amendment that violates rights recognized by the federal Constitution.

Hasn't the US Supreme Court has ruled marriage is a fundamental right?

 

[Seawytch]

On this we can agree. While we can argue the merits (or lack there of) of the Prop 8 case - I think that concerning Same-sex Civil Marriage (SSCM) the Prop 8 challenge was a tactical error.

If not for the Prop 8 case, California would probably already have SSCM. The historical shift in attitudes and voter response in general had shown a trend of more acceptance. In California alone Prop 22 (Statutory Law) passed by 23% and then just 8-years later Prop 8 barely squeaked by with only 2.5%.

There would have been much, MUCH more political capital, in a strategic sense, to have been gained from resubmitting to a vote and having Prop 8 repealed at the ballot.



>>>>

Except that Civil Rights aren't supposed to be up for majority opinion.

Chief, I'm talking tactics and strategic advantages.

If Prop 8 win's at the SCOTUS, it will setback SSCM in California. If Prop 8 looses at the SCOTUS it might mean SSCM's will again resume in California, but could also result in a politcal backlash because of the courts involvement.

First you won in the courts...

.........Then you won in the legislature.

.................Last fall you began winning at the ballot box.



Strategically speaking winning California at the ballot box could and would have a HUGE impact on the furtherance of acceptance at the national level.



>>>>

We're still going to win. If the court dismisses, CA wins. If they take the case, they'll rule in favor if marriage in CA. Win no matter what!

 

[Procrustes Stretched]

people think this mess is somehow the fault of Proposition 8.

Nope. People know this mess is the fault of the bigots behind Prop 8 who can't keep their stories straight. Straight?

Walker trod heavily on the path Kennedy has blazed on gay rights: "t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker."'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. *"Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Judge Walker's decision to overturn Prop 8 is factual, well-reasoned, and powerful. - Slate Magazine

 

[Procrustes Stretched]

Except that Civil Rights aren't supposed to be up for majority opinion.

Chief, I'm talking tactics and strategic advantages.

If Prop 8 win's at the SCOTUS, it will setback SSCM in California. If Prop 8 looses at the SCOTUS it might mean SSCM's will again resume in California, but could also result in a politcal backlash because of the courts involvement.

First you won in the courts...

.........Then you won in the legislature.

.................Last fall you began winning at the ballot box.



Strategically speaking winning California at the ballot box could and would have a HUGE impact on the furtherance of acceptance at the national level.



>>>>

We're still going to win. If the court dismisses, CA wins. If they take the case, they'll rule in favor if marriage in CA. Win no matter what!

Of which you suck. Brilliant Constitutional lawyers with experience winning before the Courts beg to differ with you.

 

[Seawytch]

Chief, I'm talking tactics and strategic advantages.

If Prop 8 win's at the SCOTUS, it will setback SSCM in California. If Prop 8 looses at the SCOTUS it might mean SSCM's will again resume in California, but could also result in a politcal backlash because of the courts involvement.

First you won in the courts...

.........Then you won in the legislature.

.................Last fall you began winning at the ballot box.



Strategically speaking winning California at the ballot box could and would have a HUGE impact on the furtherance of acceptance at the national level.



>>>>

We're still going to win. If the court dismisses, CA wins. If they take the case, they'll rule in favor if marriage in CA. Win no matter what!

Of which you suck. Brilliant Constitutional lawyers with experience winning before the Courts beg to differ with you.

Really? Who thinks gay marriage won't be legal in CA after the SCOTUS rules?

 

[DiamondDave]

It's always struck me as interesting how gay marriage proponents are quick to bring up Loving v. Virginia as if that's all they need to make their point about gay marriage being a civil right.

The main reason Loving doesn't pertain is because race and sexual orientation are not the same, not philosophically, biologically, or in this case, jurisprudentially, as the court has never found sexual orientation to require as high a level of review as race. Furthermore, anti-miscegenation laws were criminal statutes that carried jail time, fines, and other penalties. With same-sex marriage, it's just not of the law in most states. You're not going to be locked up because you have a legal same-sex marriage in another state.

But, the biggest thing that stands out is there is actual Supreme Court precedence on the exact question of gay marriage: Baker v. Nelson.

Basically, it was a case in 1972 (five years after Loving v. Virginia) where a couple went to court in Minnesota to say that for the state to recognize straight marriage but not gay marriage was in violation of the 9th and 14th amendment. Minnesota found no right to same-sex marriage and because of the circuit it was in, it was up for mandatory review by the Supreme Court. The Supreme Court dismissed the case, "for want of a substantial federal question", and thus is binding precedence.

Now, of course, some people who think they're clever will say that it's only binding on cases that are exactly the same as the case they dismissed. It's not as strict as that -- precedence rarely is -- but isn't it funny that gay marriage proponents will reach back to Loving as being directly on the nose and completely bypass Baker, a case in which the Supreme Court, and most likely the exact same Court that struck down anti-miscegenation laws, also dismissed the claim that same-sex marriage is a constitutional right?

race and sexual orientation aren't the same in whose mind? yours?

loving says marriage is a fundamental right and can't be denied to anyone based on discriminatory reasons.

*shrug*

Been over this many times Jill. one is proven to be genetic and biological.. the other is not.. and unless something is genetic or biological, it is either learned behavior, choice, etc.. which we discriminate against the behaviors and choices every day and have the freedom to do so.. and if it is found to be a mental issue, chemical imbalance etc, why do we then seek cures for other such instances of things and not this one??

I accept people being with whomever they wish.. and I would like government to reduce its influence over this and have all family couples treated the same in governmental matters under the law... for I have the freedom to do so.. but just as I have the freedom to be that way, someone else has the freedom to be against that behavior.. I am not going to be against the other person's freedom (even if I disagree with their stance) for the sake of forced acceptance

 

[WorldWatcher]

Except that Civil Rights aren't supposed to be up for majority opinion.

Chief, I'm talking tactics and strategic advantages.

If Prop 8 win's at the SCOTUS, it will setback SSCM in California. If Prop 8 looses at the SCOTUS it might mean SSCM's will again resume in California, but could also result in a politcal backlash because of the courts involvement.

First you won in the courts...

.........Then you won in the legislature.

.................Last fall you began winning at the ballot box.



Strategically speaking winning California at the ballot box could and would have a HUGE impact on the furtherance of acceptance at the national level.



>>>>

We're still going to win. If the court dismisses, CA wins. If they take the case, they'll rule in favor if marriage in CA. Win no matter what!

The court ruling to overturn Prop 8 is not a given. If they were to vote to allow it to stand, that would be a HUGE setback.


>>>>