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Ugh. For all my snark about Kennedy's grandstand writing, I really enjoyed reading this opinion. No explicit reference to what tier of scrutiny applies, but I will note: "And [petitioners'] immutable nature dictates that same-sex marriage is their only real path to this profound commitment [of marriage]." Slip Op. at 4.
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Jun 26, 2015 16:01
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Northjayhawk posted:I'm surprised that the opinion avoided the standard of scrutiny for gays entirely and just declared that the SSM bans violated equal protection. Why not explain that it fails even the rational basis test? Pretty simple, you can't run around being exclusionary. It's been great watching conservatives twist themselves in a knot for a generation trying to argue otherwise.
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Jun 26, 2015 16:02
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Shifty Pony posted:Crossposting from the TX thread, SSM is a go in Austin: Who's up for it?
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Jun 26, 2015 16:03
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The Warszawa posted:On the other hand, adjudicating the rights of minority groups in a representative democracy is one of the most rock-solid reason to have an institution as counter-majoritarian as a life-tenured federal judiciary, so if this isn't the role of the Court I'm not sure what the gently caress he thinks it is. They are better disguised tears and they are inconsistent with what the court has done in the past in regards to discrimination in some states due to racist or other beliefs.
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Jun 26, 2015 16:04
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BlueBlazer posted:Pretty simple, you can't run around being exclusionary. It's been great watching conservatives twist themselves in a knot for a generation trying to argue otherwise. You can discriminate against certain groups if there is a good reason for it. I didn't expect the court to decide heightened or strict scrutiny for gays today, but I thought they would at least explain that there is no rational basis for the bans
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Jun 26, 2015 16:05
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I hope my state-appointed husband looks like Manu Bennett.
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Jun 26, 2015 16:06
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I disagree with Scalia on a lot of issues, but I can agree with him that Kennedy's writing style is awful.
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Jun 26, 2015 16:09
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I don't understand this part of Thomas's dissent.quote:The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away. Gay people who can't get married are like slaves, and Japanese internees, but the government can't bestow dignity so they don't need gay marriage rights. What is he trying to say by this analogy?
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Jun 26, 2015 16:11
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QuoProQuid posted:I disagree with Scalia on a lot of issues, but I can agree with him that Kennedy's writing style is awful. It works for this I think
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Jun 26, 2015 16:11
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Chamale posted:I don't understand this part of Thomas's dissent. "I wish we still lived in 1870"
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Jun 26, 2015 16:11
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Chamale posted:I don't understand this part of Thomas's dissent. You don't understand Thomas. He has a chip on his shoulder the size of a boulder and is self hating.
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Jun 26, 2015 16:12
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Chamale posted:I don't understand this part of Thomas's dissent. That Thomas lives in a different universe and is very confused when having to interact with this one.
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Jun 26, 2015 16:13
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Chamale posted:I don't understand this part of Thomas's dissent. Kennedy is saying that one of the harms of SSM bans is that it damages the dignity of gay couples. Thomas is reacting to that.
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Jun 26, 2015 16:13
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Chamale posted:I don't understand this part of Thomas's dissent. It probably makes more sense in context but I'm guessing he's saying that one of the arguments by the plaintiffs is that dignity is a core part of marriage, but a lack of official marriage recognition doesn't lead to a loss of dignity. Or Kennedy instead of a plaintiff, but whatever.
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Jun 26, 2015 16:13
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Chamale posted:I don't understand this part of Thomas's dissent. He's objecting to the majority's conception of the 14th amendment as encompassing "dignity" and tossing in some stoicism for good measure
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Jun 26, 2015 16:13
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Bexar county (San Antonio) is ready to issue licenses. They changed all the terminology a few months ago to remove the wording of his or her or husband or wife in preparation. Some of my friends are headed there now to get their licenses.
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Jun 26, 2015 16:14
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I'm still hung up on the part about a Harvard-Law-educated Catholic from New Jersey freaking out in his dissent that the Court does not feature enough representation from Evangelical middle-Americans
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Jun 26, 2015 16:15
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Today in the court: "It is dangerous for SCOTUS to rewrite laws" - Scalia and Roberts in the gay marriage case "It is completely okay for SCOTUS to rewrite laws" - Scalia and Roberts in the Armed Career Criminal Act case
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Jun 26, 2015 16:16
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I uh... decided to memorialize the greatest line from yesterday's dissent by Scalia. This was a quick one hour job with Paint.Net, but whatevs. 
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Jun 26, 2015 16:17
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walgreenslatino posted:I'm still hung up on the part about a Harvard-Law-educated Catholic from New Jersey freaking out in his dissent that the Court does not feature enough representation from Evangelical middle-Americans He's basically whining that the court is not as representative as the legislative branch, implying that the court is writing law with this decision rather than just interpreting the 14th amendment wrt SSM.
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Jun 26, 2015 16:18
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Chamale posted:I don't understand this part of Thomas's dissent. there's a strain of black conservatism along the lines of "white people can't bring me down" that he comes from it's orthogonal to the normal liberal vs. conservative discourse
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Jun 26, 2015 16:18
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walgreenslatino posted:I'm still hung up on the part about a Harvard-Law-educated Catholic from New Jersey freaking out in his dissent that the Court does not feature enough representation from Evangelical middle-Americans No Evangelicals! No Protestants! Too many Jews
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Jun 26, 2015 16:19
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Rebochan posted:I uh... decided to memorialize the greatest line from yesterday's dissent by Scalia.  I would buy that, it looks deliciously salty.
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Jun 26, 2015 16:19
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computer parts posted:It probably makes more sense in context but I'm guessing he's saying that one of the arguments by the plaintiffs is that dignity is a core part of marriage, but a lack of official marriage recognition doesn't lead to a loss of dignity. But the fact that he went to the examples that he did instead of nearly anything else really says something about him. He could have used an example like the government not handing out free candy bars and made himself look like a child. Using slavery and internment camps straight up says "THIS GUY IS EVIL".
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Jun 26, 2015 16:20
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Northjayhawk posted:You can discriminate against certain groups if there is a good reason for it. I didn't expect the court to decide heightened or strict scrutiny for gays today, but I thought they would at least explain that there is no rational basis for the bans They did decide that it violates equal protection, just not the level of scrutiny. Since gays aren't explicitly a protected class, they've stated (by implication) that gay marriage bans fail rational basis review.
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Jun 26, 2015 16:20
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WhiskeyJuvenile posted:there's a strain of black conservatism along the lines of "white people can't bring me down" that he comes from FYGM to the extreme.
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Jun 26, 2015 16:21
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Kalman posted:they've stated (by implication) that gay marriage bans fail rational basis review. It would have been a stronger, more uplifting opinion if they had not just implied it. Lower court decisions that explained why they fail the rational basis test have usually been great to read.
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Jun 26, 2015 16:23
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walgreenslatino posted:I'm still hung up on the part about a Harvard-Law-educated Catholic from New Jersey freaking out in his dissent that the Court does not feature enough representation from Evangelical middle-Americans Northjayhawk posted:He's basically whining that the court is not as representative as the legislative branch, implying that the court is writing law with this decision rather than just interpreting the 14th amendment wrt SSM. I know, I just think it's disingenuous to complain that this is a travesty and is preventing the outcomes you want / the outcomes that are 'correct,' when literally all four dissenting justices here are Catholic. I dunno what I expected from Scalia but still walgreenslatino fucked around with this message at 16:30 on Jun 26, 2015 |
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Jun 26, 2015 16:25
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I disagree 100%. By failing to identify that the tier of scrutiny was rational basis, the Court leaves open what tier actually applies to laws affecting non-heterosexual persons. By stating that rational basis applied, the Court would have closed the book on that issue, and would have held that the least stringent tier of scrutiny applied. I wish they went ahead and stated a tier (intermediate), but failing to do so is much better than stating that the tier was rational basis. edit: further, I'd say that the equal protection analysis was really just a buttress of the fundamental due process right analysis, and - whether or not that is now going to be a new offshoot of fundamental right jurisprudence - therefore did not necessarily lend itself to a tier-of-scrutiny analysis. It was, simply, (A) this is a fundamental right that (B) is being treated unequally in who can exercise it, thus supporting the already defined conclusion that SSM was constitutionally required. more edits: I'm not extremely familiar with EPC jurisprudence, but this looks like typical Kennedy 101 of mushing together two areas of the law without a clear definition of how it should play out in future cases but does it anyways because it feels right in this case. Green Crayons fucked around with this message at 16:32 on Jun 26, 2015 |
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Jun 26, 2015 16:27
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Not to take away from the big win here, but is there a decision yet on the death penalty case, or is that for Monday?
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Jun 26, 2015 16:35
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Yoshifan823 posted:Not to take away from the big win here, but is there a decision yet on the death penalty case, or is that for Monday? Monday.
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Jun 26, 2015 16:37
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Green Crayons posted:By stating that rational basis applied, the Court would have closed the book on that issue, and would have held that the least stringent tier of scrutiny applied. This is wrong. The courts have, many times, said "since this fails rational basis, we don't even need to consider whether other standards should apply", and punted the larger question to a future day when its necessary.
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Jun 26, 2015 16:37
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So instead of "implying" that RB applied, you wished that they "assumed without deciding" RB applied? Okay.
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Jun 26, 2015 16:39
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"The tree of liberty must be refreshed from time to time by the tears of Antonin Scalia."
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Jun 26, 2015 16:43
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Green Crayons posted:So instead of "implying" that RB applied, you wished that they "assumed without deciding" RB applied? I don't think you understand what I am saying. When you state that there is no rational basis for SSM bans, then you have to explain why, and that leads to awesome sections highlighting the silliness of the other side's objections to SSM, methodically tearing apart the arguments for why they think the bans are needed. Those opinions have been far stronger, more uplifting, and more devastating to the idiots on the other side than this weird... thing that Kennedy produced. Many of the lower courts have done exactly this on the SSM bans, and it does not foreclose the possibility of giving gays heightened scrutiny in the future if it becomes necessary to decide that one day.
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Jun 26, 2015 16:45
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walgreenslatino posted:I'm still hung up on the part about a Harvard-Law-educated Catholic from New Jersey freaking out in his dissent that the Court does not feature enough representation from Evangelical middle-Americans Obama should promise to nominate a midwestern protestant if he just goes ahead and retires.
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Jun 26, 2015 16:45
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Chamale posted:I don't understand this part of Thomas's dissent. Arguing with Kennedy over word choice. I get his point and agree. Dignity is something that comes from within and nothing the state does can take that from you. However, overall I think dissenting in this case is bullshit. Marriage is a fundamental right. The end.
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Jun 26, 2015 16:48
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FuriousxGeorge posted:Obama should promise to nominate a midwestern protestant if he just goes ahead and retires. Then nominate himself.
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Jun 26, 2015 16:49
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Northjayhawk posted:When you state that there is no rational basis for SSM bans, then you have to explain why, and that leads to awesome sections highlighting the silliness of the other side's objections to SSM, methodically tearing apart the arguments for why they think the bans are needed. The best sweeping SSM opinion ever written happened to be the first: the San Fransisco prop 8 ruling by Vaughn Walker (conclusions of the law start at page 109, but the evidence/credibility/findings sections are unbelievably amazing too). He overtly specifies that BOTH arguments have merit (i.e. that the bans don't survive strict scrutiny if the classification is assumed AND that there is no rational basis for the classification), and beautifully explains why. He even throws in a wonderful little argument that I wish had caught on more: because gender is no longer central to marriage, which is instead a union of equals (as opposed to a gender-infused power dynamic), SSM discrimination is not only sexual orientation discrimination (to which he applies due process and equal protections rights), but gender discrimination as well (which carries a whole host of legal precedent). In fact, I'm going to reread it now and pretend that the Walker decision is what people will talk about a few decades from now instead of Windsor (ugh). edit: VVV Walker also expresses that gay Americans aren't even joining an existing institution, but exercising a right that they have always held since the writing of the constitution. It's a really great ruling. Forever_Peace fucked around with this message at 16:59 on Jun 26, 2015 |
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Jun 26, 2015 16:56
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Northjayhawk posted:I don't think you understand what I am saying. When you state that there is no rational basis for SSM bans, then you have to explain why, and that leads to awesome sections highlighting the silliness of the other side's objections to SSM, methodically tearing apart the arguments for why they think the bans are needed. I understood the lower courts to take the tactic of assuming without deciding rational basis because SCOTUS hadn't spoken on the issue and, in any event, RB was not satisfied. That's fine as far as lower courts go. Generally, I don't think SCOTUS should adopt the same tactic of expressly (or implicitly, but *sigh*) ducking issues on assuming without deciding bases. Specifically, I think it would have cut against some of the foundation in this very opinion suggesting a higher tier applies - Kennedy speaks of the "immutable" characteristic of sexual preference, as well as the lengthy and deep prejudice held against gay individuals. Cutting the state's arguments about why SSM is the sign of the apocalypse is gratifying, to be sure. And there's some of that in this opinion (regarding the "but children!" argument). But I think the tone and tenor of the opinion is equally inspiring: marriage is a valued institution, and same-sex couples only seek to join, not denigrate, that institution (and, indeed, cannot denigrate that institution). Plus this allows Kennedy to keep in the bits suggesting a higher level of scrutiny while distracting the dissents on the issue of fundamental rights under the Due Process Clause. edit: as an addendum, maybe Kennedy just got cold feet that he wouldn't be able to beat Posner at the "lolwut are you even aruging" game. Green Crayons fucked around with this message at 17:01 on Jun 26, 2015 |
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Jun 26, 2015 16:57
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