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The Constitution & The Judicial Branch Discuss DOMA & Prop 8 at the Political Forums; In March, the Supreme Court heard two cases on same-sex marriage. I had the pleasure of listening to the oral ...

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Old 06-22-2013, 10:09 AM
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Default DOMA & Prop 8

In March, the Supreme Court heard two cases on same-sex marriage. I had the pleasure of listening to the oral arguments with some friends, gathered around the computer and streamed the arguments.

If you get the chance to kill an afternoon, I encourage you to sit down and listen to the arguments. Get a constitutional law book, perhaps the treatise written by Erwin Chemerinsky, and enjoy! It's a great great lesson on how the Supreme Court works because IN BOTH cases there were tons of questions on ability of the Court to even hear the case...

If you listen to the arguments, it sounds like DOMA is in trouble as is Prop 8, but for different reasons.

Conventional wisdom asserts that the Court will strike down DOMA as un-Constitutional and punt on Prop 8 which means that the Appellate Court decision will stand and Prop 8 will be overturned.

Now I'm very mindful that conventional wisdom and reading the tea leaves doesn't always work out. Look at the healthcare ruling. No one thought that Roberts would break ranks...

But here is how the conventional wisdom works...

On DOMA (United States v. Windsor):

Almost HALF of the argument on DOMA was questions of standing (who can bring the case?). It was really quite fascinating.

United States v. Windsor - Wikipedia, the free encyclopedia
http://www.c-span.org/uploadedFiles/...nts/12-307.pdf

Once the Court got to the merits of the case, it was on... Justice Kennedy tipped his hand several times and took issue with BLAG's arguments. If Kennedy is on with Kagan, Sotomayor, Breyer, and Ginsberg, and the Court gets to the merits, DOMA is toast.

I'll add to this later on the Prop 8 Case...

Read the transcripts man... fascinating fascinating stuff... AND a good review of Con Law...
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Old 06-22-2013, 10:12 AM
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Default Re: DOMA & Prop 8

Prop 8 you mean the prop that passed in 2008 because of Obama? mcCain voters voted against it in higher percentages than Obama voters.
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Old 06-22-2013, 10:16 AM
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Default Re: DOMA & Prop 8

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Originally Posted by cubsfan View Post
Prop 8 you mean the prop that passed in 2008 because of Obama? mcCain voters voted against it in higher percentages than Obama voters.
I'm sure that you can provide evidence of this...
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Old 06-22-2013, 11:27 AM
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Default Re: DOMA & Prop 8

I think your prediction of the outcome is probably accurate but the decision will have nothing to do with the merits of the case and everything to do with the justices desire to rewrite the laws as they need to for social acceptance by the Leftist cocktail party crowd and it is a chance to reinforce the superiority of their brethren in black robes over the rubes that voted for Prop 8.
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Old 06-22-2013, 11:28 AM
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Default Re: DOMA & Prop 8

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Originally Posted by AZRWinger View Post
I think your prediction of the outcome is probably accurate but the decision will have nothing to do with the merits of the case and everything to do with the justices desire to rewrite the laws as they need to for social acceptance by the Leftist cocktail party crowd and it is a chance to reinforce the superiority of their brethren in black robes over the rubes that voted for Prop 8.
Blah blah blah...

You keep making this argument and have zero ZERO ZERO evidence to support it.
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Old 06-22-2013, 12:32 PM
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Default Re: DOMA & Prop 8

Quote:
Originally Posted by dabateman View Post
Blah blah blah...

You keep making this argument and have zero ZERO ZERO evidence to support it.
Oh really, does the right to gay marriage appear in the Constitution? Nope, it was declared by the judiciary. Does the DOMA prevent the people of one state from redefining marriage for the people of other states? Yep. Did the gay judge that threw out the voter majority's decision on prop 8 declare the millions of voters "irrational" and stuff more than 80 findings of fact in violation of the rational basis standard into his decision. Yep. But hey there is no evidence as long as you ignore it.

What happened in San Francisco when Prop 8 passed? Violent protests and property destruction. Gee, where is the supposedly impartial 9th circuit located?
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Old 06-22-2013, 07:15 PM
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Default Re: DOMA & Prop 8

Quote:
Originally Posted by AZRWinger View Post
Oh really, does the right to gay marriage appear in the Constitution?
Yes. See 14th Amendment.

Quote:
Nope, it was declared by the judiciary.
Because of the 14th Amendment.

Quote:
Does the DOMA prevent the people of one state from redefining marriage for the people of other states?
No. Actually DOMA is not primary means by which that's done. I've educated you on this before but you're not good on the uptake.

Quote:
Yep.
Nope.

Quote:
Did the gay judge that threw out the voter majority's decision on prop 8 declare the millions of voters "irrational" and stuff more than 80 findings of fact in violation of the rational basis standard into his decision.
Nope. The findings of fact merely prove that EVEN UNDER rational basis, you have no argument.

Quote:
But hey there is no evidence as long as you ignore it.
I don't ignore it. I see that it works for my position.

Quote:
What happened in San Francisco when Prop 8 passed? Violent protests and property destruction. Gee, where is the supposedly impartial 9th circuit located?
And? This has what to do with what?

You're so desperate to make an argument that you're reaching out on the farthest limb. I'm looking forward to watching it snap.
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Old 06-22-2013, 08:02 PM
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Default Re: DOMA & Prop 8

Quote:
Originally Posted by dabateman View Post
In March, the Supreme Court heard two cases on same-sex marriage. I had the pleasure of listening to the oral arguments with some friends, gathered around the computer and streamed the arguments.

If you get the chance to kill an afternoon, I encourage you to sit down and listen to the arguments. Get a constitutional law book, perhaps the treatise written by Erwin Chemerinsky, and enjoy! It's a great great lesson on how the Supreme Court works because IN BOTH cases there were tons of questions on ability of the Court to even hear the case...

If you listen to the arguments, it sounds like DOMA is in trouble as is Prop 8, but for different reasons.

Conventional wisdom asserts that the Court will strike down DOMA as un-Constitutional and punt on Prop 8 which means that the Appellate Court decision will stand and Prop 8 will be overturned.

Now I'm very mindful that conventional wisdom and reading the tea leaves doesn't always work out. Look at the healthcare ruling. No one thought that Roberts would break ranks...

But here is how the conventional wisdom works...

On DOMA (United States v. Windsor):

Almost HALF of the argument on DOMA was questions of standing (who can bring the case?). It was really quite fascinating.

United States v. Windsor - Wikipedia, the free encyclopedia
http://www.c-span.org/uploadedFiles/...nts/12-307.pdf

Once the Court got to the merits of the case, it was on... Justice Kennedy tipped his hand several times and took issue with BLAG's arguments. If Kennedy is on with Kagan, Sotomayor, Breyer, and Ginsberg, and the Court gets to the merits, DOMA is toast.

I'll add to this later on the Prop 8 Case...

Read the transcripts man... fascinating fascinating stuff... AND a good review of Con Law...
That's interesting, D-man, please keep us updated. History is being made however it turns out and the details are fascinating.
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Old 06-22-2013, 09:30 PM
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Default Re: DOMA & Prop 8

If you will note, AZRWinger begins with a fundamentally flawed assumption. He believes that the primary question is "Is there a Constitutional right to same-sex marriage?". When AZRWinger is allowed to get away with this deceptive framing of the question, it permits a mooting of the true legal and Constitutional questions...

Don't reward lazy thought and don't fall into the trap. The issues are far more complicated than AZRWinger would have you believe.

AZRWinger wants you to ask if there is a Constitutional right to same-sex marriage and reach the conclusion he has, that there is no Constitutional right to same-sex marriage. The problem with AZRWinger's analysis is that it is the most shallow, most cursory, and least rational means of examining the issue.

But for grins, let's play his game for a moment.

1. Is there a Constitutional right to same-sex marriage?

We are forced to begin with asking if there is a Constitutional right to marriage. If you search the text of the Constitution for the right to marriage, you will not find it explicitly written. Does that mean that there is not a Constitutional right to marriage?

If you buy into AZRWinger's interpretation, you must answer no. If it's not explicitly written into the text, it does not exist. Consequentially, if you buy into AZRWinger's interpretation, you must also conclude there is no right to ammunition. While the right to bear arms is explicitly written into the text, there is no explicit right to ammunition written into the text. One must INFER from the text that there is a right to ammunition.

So is there a right to ammunition or isn't there? I say there is. I say that the Constitution REQUIRES inferences be made in order to support the explicit rights in the text. If AZRWinger is true to his convictions instead of his politics, he must either agree that inference is required in Constitutional interpretation OR he must assert that only explicit textual rights exist and thus there is no right to ammunition, marriage, or same-sex marriage.

Now, I have asserted that I believe there is a Constitutional right to marriage just as I believe there is a Constitutional right to ammunition. I believe that this right is necessarily inferred from the rights explicitly outlined in the Constitution. The same is true parental rights. Parental rights are not explicitly lined out in the Constitution but few rational people would argue there is a fundamental right to parentage.

Marriage and parentage, like ammunition, are directly related to and natural extensions of the rights outlined in the Constitution.

IF there is a right to marriage, which I propose there is, then there is indeed a right to same-sex marriage. Same-sex marriage flows from the same relation and natural extension of the rights outlined in the Constitution.

Even if you don't believe that same-sex marriage is a natural extension and relation of the rights outlined in the Constitution, you still face the question of equal protection. The Courts are bound to apply the laws equally barring a substantial state interest to the contrary, especially in cases where there is evidence of discriminatory intent or animus as there is in the DOMA legislation.

So is there a right to same-sex marriage? I say there is... I say there is and many of the leading conservative legal scholars agree.

2. HOWEVER, the question before the Court isn't really a question of the fundamental nature of the right of same-sex marriage. The questions before the court are different.

3. In relation to DOMA, the primary question is who gets to define marriage?

The answer has always been that the states get to define marriage until that definition of marriage violates the federal Constitution. And indeed this clear from the varying restraints that states have placed on marriage. Even something as basic as age can be a means to define marriage. States can allow individuals under 18 to get marriage. Some states require parental consent. Some states let you get marriage as early as 15 while in other states, even with parental consent, you can't get married at 15. What does that mean for the federal government?

The federal government has always recognized the state definition of marriage. However, DOMA does not permit the federal government to recognize same-sex marriage which the states have, within their rights, defined as marriage.

This violates federalism and creates problems in compliance with the 10th amendment as Justice Kennedy pointed out in oral arguments. Additionally, as Justice Ginsberg pointed out, there is also the question of equal protection because legal marriages are treated differently by the federal government. Justice Ginsberg called this "skim-milk marriage". So there are two primary theories of Constitutional violation, neither of which rests on the question of the fundamental nature of the right of same-sex marriage. So don't let the false construct presented by AZRWinger fool you.

AND, that's just DOMA.

The Prop 8 question is a completely different question... A different case...
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Originally Posted by Johnny Cash
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Old 06-23-2013, 01:27 AM
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Default Re: DOMA & Prop 8

The thing about McCain voters voting against it in higher percentages I heard back in 2009.

And OBAMA WAS THE MAIN REASON IT PASSED! IF he had had guts and come out against it it never would have passed.

Idiot voters in California would have voted for an law that required people to wear a steaming pile of doo doo on their heads every other tuesday between noon and 2 if Obama had told them to.
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