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Re: The United States Supreme Court


maybe in Kavanut's case, it's the beer talking [hic]
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The word 'dumb' is an acronym for 'Doesn't Use Mind'. The 'B' is for duuuuurrrrr
10/29/2020, 7:27 am Link to this post PM Lucas P
 
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Re: The United States Supreme Court


Just found this:

Kavanaugh tweaks voting opinion after Vermont official asks for correction

The story can be found HERE.

The moral is: Kavanaugh is an idiot.

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10/29/2020, 7:30 am Link to this post PM streamline2001
 
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Re: The United States Supreme Court


quote:

streamline2001 wrote:

Just found this:

Kavanaugh tweaks voting opinion after Vermont official asks for correction

The story can be found HERE.

The moral is: Kavanaugh is an idiot.



Thanks, Peter. I read that but I can't tell if that fixed all of Condos's concerns.

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10/29/2020, 9:17 am Link to this post PM Miz Robbie
 
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Re: The United States Supreme Court


The Supreme Court might have to choose between power and principle

By Fareed Zakaria
Oct. 29, 2020

We know that elections have consequences, but we are often reminded that ideas do, too. That link between abstract ideas and real-world results could prove especially fateful on the day after the presidential election.

At stake is the idea of judicial originalism, which holds, in the words of the late Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” While this assertion has a seductive simplicity, it’s worth noting that this is simply one theory of how the courts should function. The Constitution itself never directs that judges should rule in this manner. In fact, the United States is unusual among advanced democracies in its practice of treating its constitution as a quasi-religious text whose meaning has to be divined chiefly through detailed textual analysis.

Judges in most advanced democracies would argue that all laws are inevitably interpreted based on a mix of original understanding, evolving societal standards and core democratic values. And even in the United States, liberals and conservatives alike accept important deviations from originalism. Otherwise we would still have segregated schools, prohibitions against interracial marriage and laws outlawing homosexuality — all of which were deemed unconstitutional by judges who used the 14th Amendment of the Constitution to do so, even though it cannot be plausibly claimed that was the intent of Congress when it passed that amendment.

Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary.

The original sin was the 2000 Supreme Court Bush v. Gore decision, when conservative justices flagrantly violated their long-espoused principles to achieve their preferred political aim. The Constitution is crystal clear that states have final authority over the selection of their electors during a presidential election. Courts had long upheld that view.

And yet, in Bush v. Gore, the Supreme Court shut down Florida’s recount using a tortuous and novel interpretation of the 14th Amendment, which was ratified to give equal rights to Black people in 1868. The writers of that amendment could not possibly have meant that it prohibited different counties within a state from using their own approaches to counting ballots in an election — an utterly unrelated issue and something that was widespread in 1868 when the amendment was passed.

In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided.

And, in fact, after the ruling, judicial conservatives rarely cited or celebrated its rationale. Scalia’s response was usually three words: “Get over it” — not exactly an intellectual argument. Privately, according to Evan Thomas’s reporting, Scalia said he thought the decision was “a piece of s---.” In the most telling admission of its illogic, the majority opinion contains the remarkable guidance that the decision should be viewed as a one-off and not cited as a precedent — contrary to the intended function of Supreme Court rulings.


Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).

All this might come to a head next week. The Pennsylvania Supreme Court has ruled that ballots sent before the end of the election that arrive up to three days late should be counted. The Republican Party appealed the decision to the U.S. Supreme Court, which still had a vacancy and deadlocked 4 to 4, with the new conservatives plus justices Samuel A. Alito Jr. and Clarence Thomas expressing willingness to intervene, and the liberals, plus Roberts, acting as the voices of judicial restraint.

On Wednesday, if Trump is ahead in Pennsylvania, the Republicans will again ask the court to shut down the vote count. This time, the court cannot deadlock since there is now a ninth justice, Amy Coney Barrett. She will have to decide whether she actually believes in the ideas she and Scalia espoused — or whether, like her mentor, when the stakes are high, she will choose power over principle.


https://tinyurl.com/y6pxvc7n
10/30/2020, 5:48 am Link to this post PM Bellelettres
 
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Re: The United States Supreme Court


The Supreme Court is hearing final arguments in the case of Obamacare.

According to Pete Williams, who has been listening to the Justices' questions, he thinks the Court lacks the five votes necessary to take down Obamacare. By his reckoning, Roberts and Kavanaugh (seriously?) sound like they will join the three liberals to keep the law intact.

Williams said the Court considered three questions:

- Are the 18 red states injured enough to give them standing to sue? Justices asked if it made sense to say that without a tax penalty, more people are going to sign up for Medicaid and cost the states paperwork.

- Is Obamacare still a mandate or not? Justices said that without a tax penalty, there is no mandate. Obamacare now only says what people SHOULD do, but there is no mandate to buy insurance or pay a tax anymore.

- Since the Court found the mandate unconstitutional, does the Court have to strike down the entire law? The Court (specifically Roberts and Kavanaugh) said no, because the best evidence of what Congress intended is what it passed into law. In 2017, the Congress said it was only going to take down the tax, not the entire program. The Congress CONSIDERED taking down the entire law, but they didn't do it.

Even Samuel Alito (seriously?) said Obamacare is like a plane; opponents have brought the case to the Supreme Court and argued that the mandate is like a piece of equipment on a plane that can't fly without it. Alito said they took out the piece of equipment, and the plane is flying just fine without it.

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11/10/2020, 12:22 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


(CNN) - Samuel Alito's viral speech signals where conservative Supreme Court is headed

There's no secret to what Supreme Court Justice Samuel Alito wants for the law in America. He said it out loud Thursday night in an ireful speech to the conservative Federalist Society.

Alito, who rarely speaks in public but has a way of going viral when he does, wants the high court to move further and faster on right-wing, anti-regulation interests, particularly for religion in a time of Covid, in the face of LGBTQ concerns, and when people simply, as he says, want to describe marriage as only between a man and a woman.

Alito, a 70-year-old appointee of President George W. Bush, has become an infuriated dissenter, even as his side of the bench has become fortified with appointments and will likely see greater majorities ahead.

"The pandemic has resulted in previously unimaginable restrictions on individual liberty," Alito asserted Thursday, highlighting the consequences for "worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur."

Alito said he was not minimizing the death toll of coronavirus nor commenting on "the legality" of pandemic-era rules, yet he emphasized, "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."

"The Covid crisis has served as a sort of constitutional stress test and in doing so, it has highlighted disturbing trends that were already present before the virus struck." He referred to agency regulation and a general "dominance of lawmaking by executive fiat rather than legislation."...

Alito said today's disfavored words, on campuses and in corporations, are of a new variety. They are also too abundant to list, he said. Still, the jurist who continues to protest the court's decision affirming same-sex marriage offered this example: "You can't say that marriage is a union between one man and one woman. Until very recently that's what the vast majority of Americans thought. Now," said Alito, "it's considered bigotry."


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11/14/2020, 7:16 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


I disagreed with the Court (and courts) on the same sex marriage cases. Not because I oppose same sex marriage- I voted for it here in Maryland- but because the courts aren't in the business of deciding what words mean.

However, it's a done deal. They were wrong, imo, but there's no reasonable or just way to turn the clock back on that. Alito creates a strawman in saying one can't say marriage is between a man and a woman: one certainly can. What one can't do is deny same sex couples the same rights and privileges intersex couples enjoy.
11/15/2020, 10:33 am Link to this post PM bacchys
 
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Re: The United States Supreme Court


quote:

bacchys wrote:

I disagreed with the Court (and courts) on the same sex marriage cases. Not because I oppose same sex marriage- I voted for it here in Maryland- but because the courts aren't in the business of deciding what words mean.


Bacchys, I have to push back on your last sentence here. Isn't it the central ROLE of the Supreme Court especially (and to some extent, the lower courts) to interpret what the Founders (and Congress) meant by their wording of the Constitution and statutes?

Last edited by JustLis, 11/15/2020, 3:15 pm


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11/15/2020, 3:15 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


Was the same-sex marriage decision decided by the Fourteenth Amendment equal protection clause? The Founders had nothing to do with that.
11/16/2020, 6:18 am Link to this post PM Bellelettres
 
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Re: The United States Supreme Court


(US News and World Report) - [Justice Anthony Kennedy] said "no union is more profound than marriage" and that the due process clause of the 14th Amendment extends to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."

"The nature of injustice is that we may not always see it in our own times," Kennedy wrote in the 34-page opinion. "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."

He also said the same amendment's equal protection clause "prohibits this unjustified infringement of the fundamental right to marry," noting the court's 1967 ruling in Loving v. Virginia – which invalidated prohibitions on interracial marriage – contained a similar finding.

"It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality," Kennedy wrote. "Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right."


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11/16/2020, 5:06 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


quote:

JustLis wrote:

quote:

bacchys wrote:

I disagreed with the Court (and courts) on the same sex marriage cases. Not because I oppose same sex marriage- I voted for it here in Maryland- but because the courts aren't in the business of deciding what words mean.


Bacchys, I have to push back on your last sentence here. Isn't it the central ROLE of the Supreme Court especially (and to some extent, the lower courts) to interpret what the Founders (and Congress) meant by their wording of the Constitution and statutes?



As Chief Justice Marshall put it, the courts have the job of saying what the law is. It's not their place to define what the words mean. For centuries, and certainly throughout the history of Anglo-Saxon jurisprudence, marriage has meant the legal union of one man with one woman. This was affirmed by SCOTUS in the late 1800s in a previous challenge to this understanding of marriage by a polygamist in U.S. v. Reynolds.

Further, the foundation of the cases- Obergefell, Windsor, In Re Marriage (California), and Goodridge (Massachusetts)- is dishonest. They effectively rule based on some Grant Right of Marriage, but either hand wave away incestuous and polyamorous unions or ignore them entirely. They only extend the institution far enough to include same sex couples. This is certainly a fine and reasonable thing for a legislature to do, but it's not saying what the law is. It's making the law what the court wants.

Roberts discussed this in his dissent in Obergefell (pgs 20-21):

quote:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.



Throughout all of these cases courts pooh-poohed the idea the state institutions of marriage are related to sex and procreation. Accepting that: what's the rationale for the prohibitions against incest and/or polyamorous unions? If four people of any sexual mix want to get married, how does denying them fit within the Grand Right of Marriage (as I call it) Kennedy so eloquently declared? How is it different to limit it to just two people than to limit it to two of different sexes? Or to prohibit- expressly prohibit in a way same-sex marriage was never prohibited- incestuous unions of two people regardless of their sexes?

The answer is there is no difference with respect to the right Kennedy asserts exists when it comes to marriage. Which is why no court which bothered to address the issues at all (Kennedy simply ignored these questions) refused to actually answer them (CA and MA Supreme Courts waved their hands at it in footnotes).



Last edited by bacchys, 11/16/2020, 7:33 pm
11/16/2020, 7:27 pm Link to this post PM bacchys
 
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Re: The United States Supreme Court


In response to some previous posts, Hugo Black.
11/16/2020, 8:02 pm Link to this post PM CooterBrown44
 
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I'm sorry, Bacchys. I had just finished a lengthy response to your post when I accidentally hit the darn X in the corner of my screen, closing the browser. Grrrrr.... I will try again, probably tomorrow. I promise I'm not ignoring you! I think I recall us going around about this subject years ago. emoticon

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11/17/2020, 5:46 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


No problem, lis!

We probably did!
11/17/2020, 9:36 pm Link to this post PM bacchys
 
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Re: The United States Supreme Court


I remember in re Marriage by the California Supreme Court maybe being the worst appellate opinion that I have ever seen. Freshmen law students research and write better.......much better......than that drivel.

I'm pretty sure that Bacchys and myself torched that one for some time.
11/18/2020, 12:38 am Link to this post PM CooterBrown44
 
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Hi, Bacchys. Trying again, though I don't have the time to research as I did for the post I accidentally deleted. Argh!

As Chief Justice Marshall put it, the courts have the job of saying what the law is. It's not their place to define what the words mean.

But...how can they determine what that law is, if they can't agree on what the words mean? A great number of Supreme Court decisions are based on what those who wrote the Constitution (or the law) means.

For centuries, and certainly throughout the history of Anglo-Saxon jurisprudence, marriage has meant the legal union of one man with one woman. This was affirmed by SCOTUS in the late 1800s in a previous challenge to this understanding of marriage by a polygamist in U.S. v. Reynolds.

But then we get back to the basic question (and I know we've gone around about this) of whether you see the Constitution as a document drawn in cement (requiring our contemporaries to peer into what they think white men in 1789 thought), or whether you see the Constitution as a living document (allowing reinterpretation as society changes).

Further, the foundation of the cases - Obergefell, Windsor, In Re Marriage (California), and Goodridge (Massachusetts) - is dishonest. They effectively rule based on some Grant Right of Marriage, but either hand wave away incestuous and polyamorous unions or ignore them entirely. They only extend the institution far enough to include same sex couples. This is certainly a fine and reasonable thing for a legislature to do, but it's not saying what the law is. It's making the law what the court wants.

When we're looking at the Equal Protection afforded by the 14th Amendment, the Justices must seriously consider what "equal" means. Why is a man allowed to marry a woman, when he cannot marry a man? A whole lot of legal rights and protections (and work benefits) emanate from the legal construct of marriage. Further, looking at substantive due process, is there a compelling reason for states to deny same-sex couples the right to marry? I can't think of one.

Roberts discussed this in his dissent in Obergefell (pgs 20-21):

Note: If Roberts wrote the dissent, his argument was the LOSING side in Obergefell.

quote:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.


Bacchys, I would argue that a LOT of laws/decisions are about a matter of degree. When Congress and the states passed a Constitutional Amendment to reduce the voting age from 21 to 18, why did they choose 18? Many 16- and 17-year-olds pay taxes from their work, while they are not allowed to vote for those who determine their taxes. When the Courts struck down public creche displays, but allowed them as PART of a holiday display, what proportion of secular/religious displays is appropriate? When the Court ruled that graduate schools could consider race as part of the admissions decision, what percentage of the decision can be based on race? 25%? Why not 30%? Why not 50%? SO many things are a matter of degree....

Throughout all of these cases courts pooh-poohed the idea the state institutions of marriage are related to sex and procreation.

As they should have.

Accepting that: what's the rationale for the prohibitions against incest and/or polyamorous unions? If four people of any sexual mix want to get married, how does denying them fit within the Grand Right of Marriage (as I call it) Kennedy so eloquently declared? How is it different to limit it to just two people than to limit it to two of different sexes? Or to prohibit- expressly prohibit in a way same-sex marriage was never prohibited - incestuous unions of two people regardless of their sexes?

I'm not an attorney -- and I've never played one on TV, either. So I have no doubt that you and Cooter know far better than I do. But here are my thoughts:

Regarding incest, I am going to start with the assumption that you and I are discussing consensual sex between adults. I read long, long ago that it would increase the likelihood of genetic defects of children because the parents would both carry the negative gene traits that allow them to be passed on. So I can see a health concern. But when we are talking about women beyond childbearing age, I have to admit I lose that argument.

Regarding polyamorous unions, I could see a prohibition based on the INCREDIBLE legal entanglements that would ensue if such a marriage fell apart. If one father leaves but the other father stays married to the mother, how do you assess child support? How is property to be divided if one of those in the relationship dies intestate? Is an employer required to provide employee benefits (such as health insurance) to ALL of the people the employee presents as a spouse?

The answer is there is no difference with respect to the right Kennedy asserts exists when it comes to marriage. Which is why no court which bothered to address the issues at all (Kennedy simply ignored these questions) refused to actually answer them (CA and MA Supreme Courts waved their hands at it in footnotes).

Those issues are, indeed, complicated. But I think the Courts didn't try to solve every problem in the world when they faced only a single question. If incestuous couples or polyamorous groups want to challenge their state marriage laws, they have that right. But the courts have already ruled with regard to multiple marriages in Reynolds, though I'm not aware of the Court ruling on an incestuous couple seeking marriage rights.

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11/20/2020, 9:25 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


Roberts was on the losing side.

SCOTUS's main job is keeping the law consistent. They rarely take cases simply because they think the outcome has been wrong. Instead, they look for cases where there is disagreement among lower courts on what the law is. With California's and Massachusetts's high courts deciding marriage included same sex marriage, there was arguably such a split.

Prior to In Re Marriage (CA), there wasn't a split. There wasn't confusion about the meaning of marriage. Reynolds, whose reasoning seems schockingly bigoted today, had addressed it a hundred years ago: it's an institution of one man and one woman. This was affirmed in 1971 with Baker v. Neson rejected a challenge to a Minnesota Supreme Court decision rejecting an equal protection claim from would-be same sex couples.

It's pretty clear looking at the writings of our Founders and every generation from then until In Re Marriage, Goodrich, and some other cases that marriage meant an institution involving two people of different sex. Even prior to our Founding, Anglo-Saxon jurisprudence and common law, on which our laws were based, recognized it as such an institution. While polygamy does have a Biblical basis, it's Old Testament: in New Testament times and from those days through our Founding, marriage was one man, one woman. So I don't think there was any confusion over the meaning of the term on which the courts could reasonably and honestly hang a decision to define it themselves.

The polygamy and incest questions matter because SCOTUS's role is primarily to settle what the law is. The decision of that court and others in those days unsettled centuries of law, and did so on the basis that marriage is a fundamental right. For shorthand purposes, I have referred to it as the Grand Right of Marriage. It has surprisingly little precedential support in our laws. The courts (and Court) cited Loving v. Virginia citing Skinner v. Oklahoma as precedent for the Grand Right of Marriage, but Skinner was a case involving forced sterilization of women, and the line about the fundamental right of marriage is simply asserted. The Skinner Court said marriage and procreation are fundamental rights:

quote:

But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.



The emphasis was on procreation. Marriage was clearly seen by the Skinner Court as related to procreation.

Which brings me to the incest question. The defense for continuing the prohibition against incest (and, yes, we're just talking about consenting adults here) is that there are reasonable questions about genetic abnormalities, health concerns, etc. to offspring. But, as noted, the courts and Court have said in these cases procreation plays no role in marriage. If procreation plays no role in marriage, problems stemming from procreation cannot outweigh the fundamental right of incestuous couples who want to get married.

Similarly with the rationale for not extending marriage beyond the number two. Sure: there will be complexities and problems in polyamorous unions which don't exist between two people in marital union, but the declaration of the Grand Right of Marriage is that it's a fundamental right. Such disputes as property division, marital and child support, and visitation are what state courts are for, and state legislatures can certainly establish basic rules just as they have historically with divorce in traditional marriages.

I'm not supportive of expanding the institution to include other unions such as incest and polyamorous ones, but I don't see how the Grand Right of Marriage reasonable leaves them out. You're right such would-be marriages can sue: some have. They've lost. The courts aren't applying the Grand Right of Marriage in an intellectually honest fashion. They're relying on dicta or silence in the cases expanding the institution to include same sex couples to justify dismissing the challenges. None I've seen have explained how it is this fundamental right is limited to two people, or why a state can prohibit some would-be couples from marrying.

A slight aside: an example I've often used in these discussions with respect to incest is my in-laws, my wife's half-siblings. My sister-in-laws husband was a career inmate. During one of his periods of incarceration her brother lived with her and helped support her and his nephews. So much so his youngest nephew asked his father, upon his parole, why his uncle's name was included in the prison tattoo his father had of his family. My nephew was about four at the time, and his father had been in prison pretty much his whole life at that point. Now, had my sister-in-law divorced her husband during that time period (as she did during a later stint in prison) and sought to marry her brother so that they could own property, share health care coverage, and care for her children more easily, it would have had nothing to do with sex or procreation...but they would have been denied because Maryland prohibits such unions in a way it never did same sex couples. Same sex couples couldn't get married because such marriages didn't exist: they weren't prohibited. Incestuous unions, OTOH, come with prison terms, just as polyamorous ones do.

I've rambled a bit, so I'll close with this: I support expanding marriage to include same sex couples, as I noted before. I'm not unhappy with the outcome of these cases. I voted to expand the institution here in Maryland. Our high court, the Court of Appeals had refused to join its California and Massachusetts brethren and the issue went to a plebiscite. My views on same sex marriage changed from lukewarm and reflexive opposition to support after reading a letter from an activist for them on what same sex couples had to do in order to get many of the rights and privileges married couples received by virtue of getting married, and also reading accounts of long time couples being separated by unaccepting families after one fell ill. It's repugnant to me that someone might choose to live their life with someone, only to have that relationship disparaged and denied by family members in a time of crisis because the laws (reasonably) prioritize next-of-kin in those circumstances.
11/21/2020, 9:12 am Link to this post PM bacchys
 
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Re: The United States Supreme Court


Roberts was on the losing side.

Yes... So while it's a signal to future litigants, it isn't a holding of the Supreme Court in that particular case.

SCOTUS's main job is keeping the law consistent. They rarely take cases simply because they think the outcome has been wrong. Instead, they look for cases where there is disagreement among lower courts on what the law is. With California's and Massachusetts's high courts deciding marriage included same sex marriage, there was arguably such a split.

Yes.

Prior to In Re Marriage (CA), there wasn't a split. There wasn't confusion about the meaning of marriage. Reynolds, whose reasoning seems schockingly bigoted today, had addressed it a hundred years ago: it's an institution of one man and one woman. This was affirmed in 1971 with Baker v. Neson rejected a challenge to a Minnesota Supreme Court decision rejecting an equal protection claim from would-be same sex couples.

It's pretty clear looking at the writings of our Founders and every generation from then until In Re Marriage, Goodrich, and some other cases that marriage meant an institution involving two people of different sex. Even prior to our Founding, Anglo-Saxon jurisprudence and common law, on which our laws were based, recognized it as such an institution. While polygamy does have a Biblical basis, it's Old Testament: in New Testament times and from those days through our Founding, marriage was one man, one woman. So I don't think there was any confusion over the meaning of the term on which the courts could reasonably and honestly hang a decision to define it themselves.


Which is fine.... Until society changes enough that the old definition no longer fits the new reality. Women were once little more than the property of their husbands. Schools were segregated. Same sex sexual relationships were illegal.

Until the courts stepped in.

The polygamy and incest questions matter because SCOTUS's role is primarily to settle what the law is. The decision of that court and others in those days unsettled centuries of law, and did so on the basis that marriage is a fundamental right. For shorthand purposes, I have referred to it as the Grand Right of Marriage. It has surprisingly little precedential support in our laws. The courts (and Court) cited Loving v. Virginia citing Skinner v. Oklahoma as precedent for the Grand Right of Marriage, but Skinner was a case involving forced sterilization of women, and the line about the fundamental right of marriage is simply asserted. The Skinner Court said marriage and procreation are fundamental rights:
quote:

But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.


The emphasis was on procreation. Marriage was clearly seen by the Skinner Court as related to procreation.


Yes. But over time, society has come to recognize that while many couples marry with a hope of creating a family, procreation is not THE reason people marry -- and a significant number of people CANNOT procreate or chooses NOT to procreate for one reason or another.

Which brings me to the incest question. The defense for continuing the prohibition against incest (and, yes, we're just talking about consenting adults here) is that there are reasonable questions about genetic abnormalities, health concerns, etc. to offspring. But, as noted, the courts and Court have said in these cases procreation plays no role in marriage. If procreation plays no role in marriage, problems stemming from procreation cannot outweigh the fundamental right of incestuous couples who want to get married.

Here, I need to quibble with wording and recognize that enforcement, if allowed, would be difficult. I read the Supreme Court as saying the procreation is not the ONLY reason people marry. However, it could be A reason people marry. And for that reason, there is a genuine public health concern. In all honesty, I cannot imagine how local county clerks could identify which couples are capable of procreating (and preventing their marriages) and which couples are not (allowing their marriages). I don't have a good answer in this case.

Similarly with the rationale for not extending marriage beyond the number two. Sure: there will be complexities and problems in polyamorous unions which don't exist between two people in marital union, but the declaration of the Grand Right of Marriage is that it's a fundamental right. Such disputes as property division, marital and child support, and visitation are what state courts are for, and state legislatures can certainly establish basic rules just as they have historically with divorce in traditional marriages.

I suspect that these issues would be far, far more complicated than we can imagine at this point.

I'm not supportive of expanding the institution to include other unions such as incest and polyamorous ones, but I don't see how the Grand Right of Marriage reasonable leaves them out. You're right such would-be marriages can sue: some have. They've lost. The courts aren't applying the Grand Right of Marriage in an intellectually honest fashion. They're relying on dicta or silence in the cases expanding the institution to include same sex couples to justify dismissing the challenges. None I've seen have explained how it is this fundamental right is limited to two people, or why a state can prohibit some would-be couples from marrying.

I honestly don't see the courts as being intellectually dishonest on this issue; I see them as being very specific in applying the law to the specific case that is brought to them. Reynolds was specific. Obergefell was specific. And I think if the Supreme Court were to try to work through all kinds of marriage issues as a result of a specific case, people would see that as a massive reach, with the Court writing law from the bench.

A slight aside: an example I've often used in these discussions with respect to incest is my in-laws, my wife's half-siblings. My sister-in-laws husband was a career inmate. During one of his periods of incarceration her brother lived with her and helped support her and his nephews. So much so his youngest nephew asked his father, upon his parole, why his uncle's name was included in the prison tattoo his father had of his family. My nephew was about four at the time, and his father had been in prison pretty much his whole life at that point. Now, had my sister-in-law divorced her husband during that time period (as she did during a later stint in prison) and sought to marry her brother so that they could own property, share health care coverage, and care for her children more easily, it would have had nothing to do with sex or procreation...but they would have been denied because Maryland prohibits such unions in a way it never did same sex couples. Same sex couples couldn't get married because such marriages didn't exist: they weren't prohibited. Incestuous unions, OTOH, come with prison terms, just as polyamorous ones do.

Bacchys, thank you for sharing a specific example from your family. No doubt, these cases are very complicated.

I've rambled a bit, so I'll close with this: I support expanding marriage to include same sex couples, as I noted before. I'm not unhappy with the outcome of these cases. I voted to expand the institution here in Maryland. Our high court, the Court of Appeals had refused to join its California and Massachusetts brethren and the issue went to a plebiscite. My views on same sex marriage changed from lukewarm and reflexive opposition to support after reading a letter from an activist for them on what same sex couples had to do in order to get many of the rights and privileges married couples received by virtue of getting married, and also reading accounts of long time couples being separated by unaccepting families after one fell ill. It's repugnant to me that someone might choose to live their life with someone, only to have that relationship disparaged and denied by family members in a time of crisis because the laws (reasonably) prioritize next-of-kin in those circumstances.

Yes.... I share your "repugnancy." It's easy to stand opposed to a particular law, but it is a lot harder when you have to explore the effects that law has on real people in specific situations.

Congrats on changing your opinion as a result of reading an activist's letter. I have changed my views on medical marijuana after reading about the help it gives many patients. It can be difficult to change positions after many years of holding a particular position. But society changes as its members change. And I think that is a good thing. emoticon

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Lis

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11/23/2020, 12:56 pm Link to this post PM JustLis
 
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Re: The United States Supreme Court


quote:

Roberts was on the losing side.

Yes... So while it's a signal to future litigants, it isn't a holding of the Supreme Court in that particular case.



I wasn't citing it as a holding of the Court, but that the issue of other forms of union were raised...and ignored in expounding the Grand Right of Marriage.

quote:

Which is fine.... Until society changes enough that the old definition no longer fits the new reality. Women were once little more than the property of their husbands. Schools were segregated. Same sex sexual relationships were illegal.

Until the courts stepped in.



None of those other things changed the meaning of "marriage."

quote:

Yes. But over time, society has come to recognize that while many couples marry with a hope of creating a family, procreation is not THE reason people marry -- and a significant number of people CANNOT procreate or chooses NOT to procreate for one reason or another.

Here, I need to quibble with wording and recognize that enforcement, if allowed, would be difficult. I read the Supreme Court as saying the procreation is not the ONLY reason people marry. However, it could be A reason people marry. And for that reason, there is a genuine public health concern. In all honesty, I cannot imagine how local county clerks could identify which couples are capable of procreating (and preventing their marriages) and which couples are not (allowing their marriages). I don't have a good answer in this case.



I put these two together because they're basically the same issue. Procreation was the state's reason for having the institution of marriage. It's true couples could marry who couldn't or wouldn't have children, and perhaps that's because it would be difficult for county clerks to figure out who could and who couldn't, let alone who would and who wouldn't. But the courts didn't say sometimes procreation is the reason and sometimes it's not. From the majority opinion in Obergefell:

quote:

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.



Marriage is a "fundamental right" such that the states can't regulate who may get married. They can't even define what it means. Except, that's only for same sex couples...the prohibitions that actually did exist at the time all these cases were decided still exist. Inconvenience and difficulty for county clerks seems like it wouldn't outweigh the interests of would-be marital unions.

While I think the courts are intellectually dishonest with respect to this "fundamental right," society has accepted the change. Which is a good thing, imo.
11/23/2020, 6:33 pm Link to this post PM bacchys
 
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Re: The United States Supreme Court


L: Which is fine.... Until society changes enough that the old definition no longer fits the new reality. Women were once little more than the property of their husbands. Schools were segregated. Same sex sexual relationships were illegal. Until the courts stepped in.

B: None of those other things changed the meaning of "marriage."

No, they didn't. My broader point was that trying to discern what a group of moderately wealthy white men would have thought about a contemporary issue 230 years later is a folly. They couldn't have CONCEIVED of the kinds of issues reaching the Supreme Court. So the Court often revisits the Constitution -- and what its words mean -- to apply broader concepts to new issues.

L: Yes. But over time, society has come to recognize that while many couples marry with a hope of creating a family, procreation is not THE reason people marry -- and a significant number of people CANNOT procreate or choose NOT to procreate for one reason or another.

Here, I need to quibble with wording and recognize that enforcement, if allowed, would be difficult. I read the Supreme Court as saying the procreation is not the ONLY reason people marry. However, it could be A reason people marry. And for that reason, there is a genuine public health concern. In all honesty, I cannot imagine how local county clerks could identify which couples are capable of procreating (and preventing their marriages) and which couples are not (allowing their marriages). I don't have a good answer in this case.


B: I put these two together because they're basically the same issue. Procreation was the state's reason for having the institution of marriage. It's true couples could marry who couldn't or wouldn't have children, and perhaps that's because it would be difficult for county clerks to figure out who could and who couldn't, let alone who would and who wouldn't. But the courts didn't say sometimes procreation is the reason and sometimes it's not. From the majority opinion in Obergefell:
quote:

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.


I think we may be saying the same thing, coming at it from two different directions.

B: Marriage is a "fundamental right" such that the states can't regulate who may get married. They can't even define what it means. Except, that's only for same sex couples...the prohibitions that actually did exist at the time all these cases were decided still exist. Inconvenience and difficulty for county clerks seems like it wouldn't outweigh the interests of would-be marital unions.

So then it CAN be defined as a legal union of two people above the age of consent, which is not prohibited by other legislation or court ruling (e.g. incest).

B: While I think the courts are intellectually dishonest with respect to this "fundamental right," society has accepted the change. Which is a good thing, imo.

While I still believe that the Court is intellectually honest, I, too, am glad that society has accepted the change. emoticon

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Lis

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11/23/2020, 7:13 pm Link to this post PM JustLis
 


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