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4 days before no more decision days left for the Supreme Court. Anyone interested in these cases should check the web or news shortly after 10am today, tomorrow, and Monday.
It is tradition that if the Court doesn't decide during a term that it would be re-argued the next term. This is unlikely for these cases.
The hardcore Court watchers for these issues probably have a browser window open just for this.
How do you think it's going to go? I don't know and this isn't a very educated guess but it is a guess:
1) Prop 8: Either the court will skip it as not ripe or will rule that you can't take a right away once you've given it per the California Constitution. If they do this then it will apply to California only. No floodgate declaring gay marriage a right. Like any court, the Supremes will adhere to the Constitutional avoidance doctrine that basically says if you can figure out a way to solve it without invoking the Constitution you should. So if they can solve this without invoking a federal right they will. Don't expect any heroic rights proclamations either way if they can duck it.
2) DOMA falls as a States rights issue. No ruling on gay marriage at all.
Under these conditions no new rights are created or restricted. It only means that the feds have to yield the definition to the States.
I think they will defer to the states...I agree the issue isnt ripe yet. Which is fine. The way gay rights has been progressing is sort of as a "local option" via the states and localities.
There have been only three USSC decisions on gay rights...
Romer vs Evans
And this pair:
Bowers vs Hardwick
Lawrence vs Texas (which reversed Bowers)
Interestingly the only Federal statute relating to gays (not including executive orders and internal policy within the Executive branch) is DOMA.
I think so too. I don't think gay marriage will be legalized by the SCOTUS across all 50 states and territories this generation. Prop 8 could even get the Baker v. Nelson treatment and refuse to be heard for "want of a substantial federal question". In other words, it's a state issue, not federal.
I think so too. I don't think gay marriage will be legalized by the SCOTUS across all 50 states and territories this generation
Agree.
I'm thinking after the decisions come down next week the gay rights battle will shift back to anti-discrimination protections, which is where it really should be going. Somehow this gay marriage issue got out in front as the focus of the movement.
Still, im suprised at the polling on this...and it would be great if there was more in-depth analyses and focus-group work on this apparent change-in-opinion.
With Prop 8 they rule that the right wing bigots have no standing so Prop 8 struck down but no impact outside of California. DOMA also gets struck down and that actually does have national impact because it will require every state to recognize marriages made in other states.
All in all it will be a bad day for religious bigots but a great day for liberty and freedom.
As far as Prop 8, are those of you that are saying states rights that they will declare it up to the states or that they will rule on California only to cover California?
I think as long as they don't legalize it they won't address state's rights to have gay marriage. The problem I see with California is that Prop 8 takes something away that was there previously. That's what I meant about Constitutional avoidance. They can make gay marriage legal in California by not declaring it legal. All they have to say is a referendum cannot remove a right once in place.
Or do you think they will say gay rights is up to the states and therefore California can let Prop 8 stand? It's confusing because they can rule based on states rights and still go either way.
And there's even a third issue that if it's up to the states is it then up to the legislature or government of California to decide the fate of Prop 8 instead of SCOTUS? If SCOTUS says it's up to them they can say that without addressing all states.
I really think they are going to try to avoid Prop 8 head on if they can. Two more hours until news or no news.
With Prop 8 they rule that the right wing bigots have no standing so Prop 8 struck down but no impact outside of California. DOMA also gets struck down and that actually does have national impact because it will require every state to recognize marriages made in other states.
All in all it will be a bad day for religious bigots but a great day for liberty and freedom.
Reciprocity is not going to be solved or even addressed in the next 4 days. So, you're probably wrong on what will happen this week as far as state recognition. But, it will be an issue and will get to SCOTUS at some point.
Due to the complex issues, the reasoning in the Prop 8 case will be very interesting, true. I think we are all saying that, one-way or another the Court will avoid "nationalizing" their ruling ("What happens in California stays in California"). Another side issue is that this reached the court via a Federal circuit court, which has jurisdiction beyond Cali...it could be that if the rulling is on the circuit court decision, it could mean ruling affects more than one state...
Im curious if they find a way to uphold DOMA (tho I understand there is sort of a consensus that it stands a good chance of being struck down). What their logic would be for upholding DOMA.
I generally disagree with you, but I think you're correct in these projections:
Quote:
Originally Posted by GCharlotte
1) Prop 8: Either the court will skip it as not ripe or will rule that you can't take a right away once you've given it per the California Constitution. ...
2) DOMA falls as a States rights issue.
However, I don't think this adequately describes the end-result:
Quote:
Originally Posted by GCharlotte
No ruling on gay marriage at all.
#2 actually is a "ruling on gay marriage" in that it is a decision made in the light of the fact that some states sanction same-sex marriage, and therefore overturning DOMA implicitly (though admitted not explicitly) ratifies the right for states to sanction same-sex marriage and have that sanction consequently respected by the federal government. Given that, I see no possible way for other states to refuse to respect same-sex marriages sanctioned by other states, since arguments against Full Faith and Credit applying to same-sex marriage have generally hinged on the constitutionality of DOMA.
Quote:
Originally Posted by GCharlotte
Under these conditions no new rights are created or restricted. It only means that the feds have to yield the definition to the States.
I think if DOMA falls and Full Faith and Credit is honored, then that's a very large portion of the injustice addressed, already. Then, the simple passage of time will usher away those who obstruct addressing the state-specific instances of injustice.
Quote:
Originally Posted by GCharlotte
Reciprocity is not going to be solved or even addressed in the next 4 days. So, you're probably wrong on what will happen this week as far as state recognition. But, it will be an issue and will get to SCOTUS at some point.
I see no element of law that could rationally justify denial of reciprocity once they've already struck down DOMA.
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