A SCOTUS Among UsFollow

A sort of planet of the apes thing?

And on a Sunday!

/clutch the pearls

Except that that's not how ANY court works in any purportedly free society.

You'd be surprised?

California is in a strange gray state on this issue though. The Courts ruling last week did not rule on whether it's unconstitutional for a state to deny marriage licenses to gay couples, and arguably strongly suggested that it would be (given the limited ruling on DOMA itself). In California, the state law, and in fact the state constitution denies marriage licenses to gay couples. It's presumed that had the SCOTUS ruled on prop 8, it would have held it constitutional (again, else why stop short in other parts that they did rule on?). And they only passed on it because of a technicality (of which there have been a lot in this silly process). They declined to rule because those bringing the suite were not formal representatives of "the state".

Which, as I said earlier, is problematic because it effectively says that public referendums have no constitutional protection (arguably any state law which the executive chooses not to defend in court). It's troubling because regardless of how you feel about the issue itself, we have a situation where the people voted, not once but *twice* on this issue, and are now being told that via a really bizarre set of nutty judicial proceedings, what they voted on is going to be ignored. It's probably the most irritating aspect of this whole issue. In our society, people are often going to disagree on a number of issues. But we accept that if our position is unpopular or in the minority that "hey. I guess most people want it the other way" and we move on.

The clear message from the SCOTUS was that states did have the right to decide what constituted a marriage within their state, and that the federal government had to abide by what those states decided. Which clearly suggests that had they actually ruled on prop 8, it would have been ruled constitutional. And that's what is really frustrating to a lot of people. It's less about what you think on the issue as the way the result has come about.

I brought this up at work yesterday and a coworker brought up the same/similar argument. You can't have it both ways. If you prefer the SCOTUS to be reactive, then you will forever be "fighting the good fight" for years/decades, being unfairly discriminated against. Many people lives will be severely and negatively affected, while the fight continues when you have the choice to end it.

Being proactive doesn't mean controlling everything. If something is blatantly unconstitutional and is widely known and practiced, there is absolutely NO reason why it can't be immediately addressed. As in my example, if California said "Women can no longer work". The SCOTUS shouldn't have to wait until someone from California brought it up. However, if California said, no stores shall be open between the hours 0200-0500, that wouldn't necessarily send up a red flag.


Edited, Jul 2nd 2013 12:42am by Almalieque

If something is blatantly unconstitutional and is widely known and practiced, there is absolutely NO reason why it can't be immediately addressed. As in my example, if California said "Women can no longer work". The SCOTUS shouldn't have to wait until someone from California brought it up.

No, they should wait. Because unconstitutional laws are passed constantly, that's why we have lower courts that can address those issues. SCOTUS should only have to deal with the ones where there's debate, which there wouldn't be in your example. Understand? JSOC also shouldn't be out writing parking tickets. It's a hierarchical structure for a reason.

Sadly, people would probably line up for that job. You wouldn't have to pay them.

.

I'd expect at least full laundry services, ammunition and snack expenses.

Not really. But you said "absolutely" so I guess that counts for something.

Huh? That doesn't even make sense. The decision they did reach regarding DOMA did not address the issue of whether gay relationships were protected, but rather ruled on the states rights angle. The ruling therefore rests on the fact that the states themselves have the right to decide what is and what is not a legal marriage and that the federal government must abide by each state's individual definition. This means that states are free to make that determination themselves. The court absolutely did not rule on the constitutionality of a state deciding not to extend that status to same sex couples, but the strong inference is that this is purely up to the states to decide.

Which in turn means that had the State of California actually defended prop 8, this court almost certainly would have ruled it constitutional by the same logic. Which was the point I was making. It puts California in an interesting legal limbo. Since the court refused on rule on the case for technical reasons, the lower federal court ruling stands, which effectively allows same sex marriage (in California, via technicality). However, there's an interesting twist to this. If say, someone sues another state which currently does not allow same sex marriage, and that state chooses to defend it, and that case goes before the Supreme Court, and the court does rule that states have the right to set their own marriage laws (thus saying that it's no more a violation of the constitution to disallow same sex marriages as to allow them), then guess what happens in California? It would revert to same sex marriage not being allowed because now the court would have ruled that prop 8 (or laws similar to it) were constitutional.


The point is that the question of whether it's a violation of some constitutional right for a state to not allow same sex couples to qualify for state marriage status remains undecided. More correctly, we've got the lower court ruling that it is unconstitutional. Which suggests that the next case brought in a no-gay-marriage state will arrive at the Supreme Court, but this time, assuming the state defends its law, we'll get a ruling. And it may not be what gay marriage advocates would want.

I like how over the years, I've been labeled as a bigoted closeted homophobe, but when I argue a method that could essentially enhance LBGT privileges "instantly" nationwide, it's given the same treatment.....