3.28.2013

Some quick thoughts about this week's (potentially) historic week at the SCOTUS:

1) DOMA is clearly unconstitutional, on 14th Amendment grounds at least. Probably 10th as well. I wouldn't be surprised to see the four liberal justices rule against on the basis of the 14th, with Kennedy (and maybe even Roberts) concurring on 10th Amendment grounds. (I suspect a few of the more level-headed Republicans in congress will live to regret not repealing DOMA when they had the chance.)

2) Chief Justice Roberts' criticism of Obama enforcing DOMA while refusing to defend it in court is valid insofar as one might expect that the President's obligation to uphold the Constitution implies that he ought not enforce laws he genuinely believes to violate it. But of course, had Mr. Obama "the courage of his convictions" he would be roundly (and perhaps rightly) criticized for taking on the role of arbiter of the Constitution, one properly reserved to the judicial branch. In other words. he cannot really "win", here, regardless of what he does. I think the middle course he has charted here is the most prudent, if not the most courageous.

3) Proposition 8 is trickier. It is rather difficult to argue on one hand that DOMA constitutes federal overreach, but that the State of California does not retain the right to determine family law on the other. The way out is of course that Prop 8 also violates the Equal Protection clause. Personally, I think it does. However, I think the Court's aversion to issuing a sweeping ruling that will effectively legalize same-sex marriage nationwide will carry the day. Either Prop 8 gets upheld, narrowly (i.e., in such a way that only affects California) or they dismiss it on the basis of standing.

Between those two, I'd prefer the latter, because that would at least (re)-legalize extant marriages in California.

4) Despite the Court's aversion to another Roe-like ruling, I think they would do both the Republicans and the country a huge favor by effectively ending the substantive policy debate nationwide. Otherwise, we're looking at years of state-level fights on this and the Republicans will have little choice but to own the issue until the current crop of pissed-off old white guys dies off.

That is, of course, no basis at all on which to rule on constitutionality. But there it is.

16 comments:

RW said...

"The big thing is to make this country, along with every other country in the world with a few exceptions, quit discriminating against people just because they're gay. You don't have to agree with it, but they have a constitutional right to be gay. And that's what brings me into it."

Barry Goldwater

Gino said...

if DOMA is tossed, doesnt that end the argument?

anybody can travel to a SSM state for a day, get married, and be recognised in their home state.

viola! it's over.

(and if prop 8 was on the ballot today, it would lose. maybe by 10 points.)

Brian said...

As I understand it, DOMA just prohibits federal recognition of SSM in states that have it for the purposes of federal benefits and programs, and specifically reserves to the states the right not to recognize SSMs from other states. Overturning DOMA would not make SSM automatically legal in states where it is not.

Overturning it probably would/will open the door to future challenges to the laws of other states.

Mr. D said...

Overturning DOMA would not make SSM automatically legal in states where it is not.

Overturning it probably would/will open the door to future challenges to the laws of other states.


Yes. That's correct. And I'm certain the challenges may end up coming to the Supreme Court. And at that time, the Court might find the larger matter of gay marriage would be ripe for review.

My thought on Prop 8 is that it ought to be upheld, narrowly, as Brian suggests. The issue that matters here is that a single federal judge overturned the wishes of an entire state, as expressed in a statewide referendum, on very specious grounds. It was outrageous and the now-retired judge needs to be slapped down for it. That the 9th Circuit backstopped the judge doesn't make what he did any more acceptable.

Having said that, I would imagine that California would then set out to overturn Prop 8 in the same manner in which it was passed. And if that campaign were successful, it would be fine with me. If gay marriage were passed via a referendum, or via legislation passed by duly elected representatives, and signed into law by a duly elected governor, it's far, far better. And it's far less likely to be overturned later, too.

Brian also says:

Otherwise, we're looking at years of state-level fights on this and the Republicans will have little choice but to own the issue until the current crop of pissed-off old white guys dies off.

Don't be so sure that the Republicans will, at least the party professionals.

And I'd add that the reason Prop 8 passed in California wasn't "pissed-off old white guys" as much as the overwhelming opposition of people who aren't pissed-off old white guys, especially African-Americans. There aren't enough pissed-off old white guys in America to control things any more, especially since some pissed-off old white guys share the views of, say, Barry Goldwater. Paul Krugman and Pete Seeger are both pissed-off old white guys, too, you know.

RW said...

I think I can at least speak for Pete Seeger on this one,. But though I myself may be pissed off and old, my politics would not define me as being purely "white;" since I don't think being white gives me any special insight or intelligence. This is unlike the pissed off old white guys I'm talking about when I use the term. Brian's interpretation notwithstanding.

So I, for one, would beg to differ with the literal notion of what the definition of "pissed off old white guy" Dr Doom ascribes to above. It is meant to mean a conservative troglodyte who hides their bigotry behind a wall of condescending, phoney intellectualism and, basically, is a disingenuous twit.

The effort to co-opt the term to the use of reactionary rhetoric is hereby rejected. And laughed at.

Mr. D said...

Accept your whiteness, RW. You're the whitest white dude that posts on this forum. You marinate in bleach.

Brian said...

Everyone is so literal in here. It's like a room full of Canadians. (Figuratively!)

Mr. D said...

It's like a room full of Canadians. (Figuratively!)

Better get some poutine.

Brian said...

Follow-up to a previous comment: Section 2 of DOMA (the part about states not having to recognize each other's SSMs) is not at issue in the case before the Court. Only the parts that prohibit federal recognition are subject to being overturned.

Brian said...

(One more thing) My understanding is that if they overturned Prop 8 on 14th Amendment grounds, that would render DOMA moot. I suspect the reason the Court took both cases was to have the chance to reign in the de facto federal overruling of family law in states where SSM is legal while still (explicitly) allowing states to keep it illegal that chose to do so.

RW said...

I marinate in vodka. It's colorless.

Gino said...

try bourbon, instead. its more American. vodka is so 'old world', ya know... not that there anything wrong with that...

Mr D speaks to a point i made previously: prop 8 passed because 2008 saw more black participation in the process than ever before. i seen that post election stats.
yet, another point i made: the anti-H8ers took out their wrath upon Mormons and Evangelical churches, this wrath included death threats and real acts of terror.

but there is a reason gay white folks dont want to protest an AME church in south central...
show up in drag there and you might get a bit more counter-protest than you intended.

the Mormons, btw, at least in The OC, delivered donuts and coffee to their protesters. (as opposed to the bullets and truncheons they would have met from a 'black' church.
yet, its the rightwing in The OC that are always viewed the troglodites.

the might be wrong, but they are not bad people.

RW said...

So black Christians would do violence to gay people? Because of the death sentence in Leviticus, or what? Because black people are animals? What are you saying - that people are supposed to not make their stand because of fear of violence? If that's what you're saying, and don't take this personal, but piss off.

"as opposed to the bullets and truncheons they would have met from a 'black' church" sounds like a few things to me...

A threat, a stereotype, maybe wishful thinking, and am implied idea that queer people are cowards maybe? I don't know what you're about sometimes. But you do seem to be intent on exposing all your old fashioned proclivities like sanctified relics or something.

It's 2013.

So, lesse (as a better man than I would say) the Church of Scientology (another "church" against gay marriage) enlisted the help of the nation of Islam and Louis Farrakhan is doing their programs right now as we speak. Half of it was to get another income stream, and the other half is to intimidate Chanology.

That didn't work either.

Are supporters of gay marriage supposed to be afraid of your buffalo soldiers or what?

Seems to me you've been going out of your way to make a complete asshole of yourself across the width of this whole issue, Gino. You need to take a breath and reign in some of the stupid.

Do it now.

Brian said...

Gino, is your point that black people are scary, or are you just trying to stand up for the poor, oppressed, middle-class white Christian?

More to the point...what the fuck does that have to do with how the Court will or ought to rule, here?

Gino said...

"You need to take a breath and reign in some of the stupid. "

ok, ok...

Bike Bubba said...

The Mormons gave coffee to the protesters? That gets a smile out of me. (they don't ordinarily drink coffee.....I wonder if anyone knew how to make it correctly?)

It'll be an interesting decision, as all kinds of things (e.g. Affirmative Action) could go if the Supremes issue a wide 14th Amendment decision.

That is, if the court decides that the unique fecundity of heterosexual couples (and difficulties associated with it)does not deserve different treatment, then what stops the court from ruling soon that the unique discrimination against certain minorities does not merit affirmative action.

Not that I wouuld generaly accuse judges of being coherent in this way.