Rubio: Federal Marriage Amendment "Steps on the Rights of States"

[True Federalist (진정한 연방 주의자)]

The FMA would have had trouble passing in 1994 when DOMA was adopted; it has zero chance of passing now.

An amendment to enable state choice as to whether same-sex marriage would be permitted probably could have passed in 1994, but it too has zero chance of passing now.  (It probably could pass even now if only a simple majority of both houses were needed.)

Gonna be interesting to read Kennedy's opinion on that issue when DOMA's overturned (I'm guessing he'll be given the duty).

I'm not certain it will be overturned.  It could be, but I don't see Kennedy as being a sure vote for overturning.  It's also possible that it'll be a decision that narrowly strips the Federal government of the power of deciding what a marriage is and leaves the larger issue of whether there is a constitutional right to same-sex marriage for another day.

Personally I think such a narrow decision would be bad, since the Federal government should not be bound to the definitions of the State governments (or vice versa) and such an attempt at moderate heroism would have repercussions far beyond the field of matrimony.  A simple decision either affirming or rejecting a constitutional right to same-sex marriage would be much preferable, and also what I expect the court to issue.

[True Federalist (진정한 연방 주의자)]

Gonna be interesting to read Kennedy's opinion on that issue when DOMA's overturned (I'm guessing he'll be given the duty).

I'm not certain it will be overturned.  It could be, but I don't see Kennedy as being a sure vote for overturning.  It's also possible that it'll be a decision that narrowly strips the Federal government of the power of deciding what a marriage is and leaves the larger issue of whether there is a constitutional right to same-sex marriage for another day.

What you describe is a wholesale overturning of DOMA (or at least sec. 3, which is all that's at issue), so I'm not sure what your point is.

Also, the court cannot decide Windsor by rejecting a constitutional right to same-sex marriage as that would not answer the question of whether Congress has power to enact DOMA. (The case could be resolved by declaring that the constitution guarantees same-sex marriage, making DOMA clearly unconstitutional, but as that would go beyond the briefs in the case and the holdings of the Circuits, I doubt the court would go there.)

In the Obamacare case, Roberts pretty much shattered the need for his court to consider just arguments raised by the briefs and arguments.  Still, if the court rules only on the Federal/State issue, then the court should and probably will uphold DOMA for now.  As I said, there are a whole mess of problems outside of marriage law that would be raised if the court ruled that the Federal government has no choice but to use State definitions.  I think that only if they go further and examine the underlying issue of whether same-sex marriage is a constitutional right will there be a chance for DOMA to be overturned.

[True Federalist (진정한 연방 주의자)]

what are your thoughts on the Prop 8 case? Unless the Court settles that on standing issues, that seems to be the more likely route through which nationwide gay marriage takes hold. The very fact that the case has even been taken up leads me to believe that it's probably going to be decided on the merits. Olson and Boies are going all the way on this argument. They're going for the full 50-state ruling on marriage equality. If anyone can grasp the ideology of the right-wing on the Court, it's definitely Ted Olson. Ultimately, the gay marriage issue seems to hinge on what Justice Kennedy is willing to do.

If the court was hearing Walker's trial decision, then Hollingsworth v. Perry would have much more potential to be the game changer same-sex marriage advocates hope for.  However, the court is hearing Reinhardt's far narrower appellate decision. If upheld as is, it could well simply end the civil union / marriage distinction in those states that have what is essentially same-sex marriage in everything but name.  (Those states are California, Delaware, Hawaii, Illinois, New Jersey, Rhode Island, and possibly Nevada and Oregon. I'm uncertain if what the last two have is effectively same-sex marriage in everything but name or not.)  It would also effectively strike down the state constitutional provisions in Alaska, Colorado, Mississippi, Missouri, Montana, and Tennessee that prohibit same-sex marriage but allow for the state to adopt same-sex marriage in all but name, but only in that it would free those state governments to adopt same-sex marriage, but it would not require them to.  Those states that have broader constitutional or statutory restrictions on same-sex relationships would still have them under a Supreme Court ruling that narrowly upholds Reinhardt's decision.

[True Federalist (진정한 연방 주의자)]

If the court was hearing Walker's trial decision, then Hollingsworth v. Perry would have much more potential to be the game changer same-sex marriage advocates hope for.  However, the court is hearing Reinhardt's far narrower appellate decision. If upheld as is, it could well simply end the civil union / marriage distinction in those states that have what is essentially same-sex marriage in everything but name.  (Those states are California, Delaware, Hawaii, Illinois, New Jersey, Rhode Island, and possibly Nevada and Oregon. I'm uncertain if what the last two have is effectively same-sex marriage in everything but name or not.)  It would also effectively strike down the state constitutional provisions in Alaska, Colorado, Mississippi, Missouri, Montana, and Tennessee that prohibit same-sex marriage but allow for the state to adopt same-sex marriage in all but name, but only in that it would free those state governments to adopt same-sex marriage, but it would not require them to.  Those states that have broader constitutional or statutory restrictions on same-sex relationships would still have them under a Supreme Court ruling that narrowly upholds Reinhardt's decision.

That seems to me like a very odd and convoluted decision, although it would be an interesting decision to see them tackle the civil union/marriage issue. I don't necessarily accept the premise that the Court is only looking at the specific California situation. They could have easily let the Ninth Circuit's decision stand, which would have been completely justified in light of Romer. I can't see them taking the case up only to simply affirm the lower court. On the other hand, I also cannot see Justice Kennedy upholding Prop 8. Mostly, I'm puzzled as to why the Supreme Court is taking up this case at all, unless it wants to make a broader ruling in support marriage equality. The standing issue only turns Prop 8 from a substantive strike-down to a procedural one (which would mean Walker's ruling takes effect in California). The Ninth Circuit's decision is not likely to constrain the Supreme Court's options, especially when you consider that Olson and Boies are going to push for a 50-state ruling. That is a different strategy compared with their narrower argument at the circuit court. Why else would the opponents of Prop 8 try to make that case at SCOTUS?

Since the court tends to go for narrow decisions when possible, then I can see them going for a narrow decision, especially since it might allow for the decision to be something other than 5-4.  I can see Roberts joining a 6-3 decision that only struck down the civil union / marriage distinction.

[True Federalist (진정한 연방 주의자)]

The direction is clear; Americans are becoming more tolerant of homosexual rights at the same time that they become increasingly intolerant of spouse abuse and child sexual abuse. It is only a matter of time.

Are you asserting a link between these three trends or just commenting on their current temporal correlation?

[True Federalist (진정한 연방 주의자)]

Why does the government have anything to do with marriage again? I should be able to marry my dog if I want, so why can't it be a legal contract that people agree to, with no tax effects or anything?

No, you can't marry a dog because dogs can't sign contracts.

[True Federalist (진정한 연방 주의자)]

I just can't wait for the inevitable SCOTUS decision that applies the Equal Protection Clause to gay couples and we can be done this debate for good. 

Even if it does that, it won't end the debate only shift the focus.  As per well established precedent, the Equal Protection Clause only applies to governmental action, so things such as businesses being required to offer their services to both same-sex and opposite-sex marriages will still require legislative action.