Supreme Court will hear Calif. gay marriage case

Can this be a stand-alone thread or is it too political? This issue seems to blur our standard political lines anyway and is more of a social issue and a news event. The last thread on the topic was pretty civil.

http://www.sfgate.com/nation/article/Supreme-Court-to-decide-same-sex-marriage-4100171.php

There was a lot of indecision about this, but the Supremes agreed to take up Prop 8 supporters' appeal of a lower court ruling (in confusing California ballot language, Yes on Prop 8 meant no on gay marriage). Although it isn't clear whether the ruling will address the matter for all states, the fact that California has more than 10 percent of the country's population makes it a significant matter regardless, and in all likelihood the first of what would be many dominoes.

For scoreboard purposes, pro-gay-marriage won the lower court ruling and is the leader in the clubhouse, so denying gay marriage would be overturning the lower court's ruling.

Ruling due in June. Probably the court's biggest issue in the next year.

 

Way too political to be a stand alone. The political make up of the court is a major factor in the decision.

 

The moment arrives for the Roberts court:

Plessy v. Ferguson?

Or Brown v. Board of Education?

Which do you want your legacy to be?

 

If that kind of thing moves him, don't we already know the answer based on his last big decision?

 

I don't think that moves him in the least bit. Roberts's m.o. was, is, and will always be to toss plaintiffs out of court, whatever it takes.

I think it moves Kennedy.

 

I didn't read you post carefully enough. You said "Roberts court" not "Roberts".

You're right in that it probably comes down to Kennedy. But, I wouldn't be surprised either way by how Roberts votes.

 

Dick, you were leading the discussion last time -- so as the appeal comes around, what is the Prop 8 supporters' legal argument? Will of the majority? "This is still gross"?

 

I just question whether it even enters his orbit that this matters to a great deal of people.

In "The Oath," Jeff Toobin wrote about how Obama was a community organizer in Chicago. He follows up by saying something along the lines of, "It's tough to even fathom Roberts doing work like that."

Now, gay people are not the same as poor people. But it's still, in many ways, a minority group. Roberts is in every way, shape, and form an establishment WASP, with establishment WASP sympathies and sensibilities. He's got a little bit of Mitt Romney in him, I think, in that he just doesn't have the background to even understand what disenfranchised groups go through. Perhaps William Rehnquist is an even better comparison.

I don't see him being moved by history here. Plaintiffs are plaintiffs to him. Particularly civil rights plaintiffs.

 

Charles Pierce has already annointed it "The Roberts Court" that's good enough for me.

http://www.esquire.com/blogs/politics/john-roberts-american-of-the-year-1212

Funny how much liberals despised Roberts after United decision and now he has become beloved. Decision against gay marriage will change it again.

 

So there are two ways that an equal protection challenge can essentially be decided:

(1)
"Strict scrutiny."
This applies largely only to racial minorities - as the 14th amendment was intially intended to protect. When a protected group is being discriminated against, the government must: (a) Have a compelling reason for the discrimination; and (2) Have "narrowly tailored" the law to serve that compelling reason. It is almost impossible for the state to win when strict scrutiny is applied. The plaintiffs will try to argue that they should be added to the list of protected groups, but it's doubtful that the Court would choose to do so. Even the Ninth Circuit didn't.

(2)
"Rational basis review."
All other groups fall here. Under this level of review, the state must simply present a rational basis for the statute. It doesn't really even have to provide a ton of empirical evidence to support the basis - it just has to be plausible. It's why, for example, states and the federal government have to pass laws like the ADA (disabilities) and age discrimination statutes instead of just relying on the Constitution to protect these groups.

The Prop 8 people will argue, and have, that they have a rational basis for the law - usually, they argue that opposite-sex marriage is intended to preserve procreation, and that children are better off with opposite-sex parents. The Ninth Circuit ruled on these grounds - in a rare instance when the plaintiff overcame rational basis review, the Court of Appeals judge said there was no rational basis for the restriction. Old people, after all, get married. And it didn't buy the social science that the Prop 8 people presented in their support.

 

OK, yeah, I was just wondering if there would be another angle they would try to sneak in.

For me the fact that 40 percent of children (in California and across the U.S.) are born to unmarried parents takes care of the rational review portion of it.

 

Yeah, but I think the argument back would be, "Just because we don't legislate out all non-traditional families doesn't mean we can't legislate out some. We can't practically or legally ban natural procreation, can we?"

Better argument: Can't gay people adopt already in California? And most states? So how can that be the basis?

It's a short walk from there to the idea that the reasons given to support Prop 8 are pretext for the real reason: Religion. And that can't be the basis for the law.