LA judge upholds state SSM ban

[SteveRogers]

This means the Supreme Court will soon take up the case.

Why?

Because there are conflicting rulings on the same issue from federal courts.

Not quite yet. While this is the first Federal District Court to uphold a SSM ban since Windsor, what really matters is whether or not there is a circuit split. So far none of the Courts of Appeals have upheld a ban. The 10th and 4th Circuits both ruled SSM bans unconstitutional. This case will be appealed to the 5th Circuit along with the Texas case that's already headed there. The 5th Circuit is the most likely to be the first Circuit Court to uphold SSM bans, so when that happens a Supreme Court decision will likely be (relatively) imminent.

 

[SteveRogers]

My guess is that the Supreme Court rules that while a federal ban on same-sex marriage is unconstitutional, a state-wide ban is constitutional and ruling that the constitution does not give federal courts the authority to strike down state-level bans on same-sex marriage. I doubt Kennedy would have any problem signing off on such an opinion.  In cases like Bush v. Gore*, D.C. v. Heller*, Shelby County v. Holder, Citizens United v. Federal Elections Commission, Sebelius v. Hobby Lobby, etc  the five conservative justices have proven that they will pay the Constitution no more mind than toilet paper when it conflicts with their personal political agendas.  The question isn't whether the Supreme Court's conservative majority will once again violate their oaths of office, but merely how far they will go.  Even if they rule that statewide bans are unconstitutional, it will only be because the Republican Party believes it is in its political interest to put this issue to bed (I suppose that would be another "who cares why people do good things" situation as Al put it in another thread).

*Alito and Roberts weren't on the Court at the time of the two * rulings.

That's insane.  Maybe you're right on the ruling, but that reasoning is insane.

Essentially, you're saying that the Supreme Court would rule that the 14th Amendment applies to the Federal government, but not the states.  I see where you're going with that because it's a Solomon-like splitting of the baby.  But, you need to think about the legal question and factual circumstances reaching the Supreme Court.  There is no Federal ban on same-sex marriage, so that's not going to be a ruling under any circumstances.  The power of the 14th Amendment to reach state action is not remotely questionable.  Not going to happen.

Then they will likely just rule that state-level bans on same-sex marriage are constitutional and that the federal courts which have struck down state-level bans acted unconstitutionally.  I agree it's an insane position, legally speaking.  I'm sure they know that too, but I doubt they care tbh.

Kennedy wrote the majority opinion in all three landmark gay rights cases, each time doing so over the strenuous objection of Scalia and company. He may fall in line with the other conservatives on many issues, but on this topic he's demonstrated a willingness time and again to break with the party line. He's been cautious about getting too far ahead of public opinion, and he plays his cards close to his chest, but his opinion on this issue is pretty clear. He knows where this all is inevitably headed, and he's not going to be the guy to suddenly reverse course and issue a Plessy-style decision that sets gay rights back 20 years.

The lower courts didn't suddenly start striking down state-level gay marriage bans on their own initiative. They've been following Kennedy's lead. He knew exactly what he was doing when he wrote the Windsor opinion. In the worst case scenario, the Court continues to punt for a little while longer. But right now every indication is that the Court will rule in favor of gay marriage by the end of 2016.

[SteveRogers]

I didn't say anything about the effect of these views on their legal bearing. The only thing I have been trying to say is that it is possible to not support same-sex marriage without being a bigot. Perhaps you equate opposition to same-sex marriage with bigotry; but you seemed to readily make all sorts of assumptions about my character earlier that were not true. Surely you can acknowledge there mere possibility that there are some people who do not support same-sex marriage without being homophobes, bigots, fundamentalists, and so forth?

Yes, they could be ignorant or stupid, however so often that's coterminous with fundamentalism or homophobia.

Honestly, I have never heard a single coherent argument that addresses the point I made earlier, why distinguish a man-woman relationship from a man-man woman-woman relationship? (except arguments that relied on fundamentalism or homophobia, which are coherent, but wrong-headed and horrible)  I'm open to hearing a coherent argument that meets my criteria.  But, I don't think it exists.  This has been argued by people smarter than you and I in the Federal Courts.  The anti-SSM marriage side has failed to find one rational basis reason for banning SSM.  Maybe you can help them and think of one, but I seriously doubt it.

It might be considered that opposition to gay marriage comes out of a somewhat different intellectual tradition than which modern "rational basis" legal arguments rest upon, and that diverse intellectual traditions can hold coherence or at least not be "stupid."

Your criteria is seems to be that any concept of marriage related to gender qua gender is bigoted by definition, is that right?

I wouldn't say that everyone who opposes gay marriage is a bigot. Many people may be old and set in their ways, they may be working off of a bad set of information about the nature of sexual orientation, and they may have never met a gay person in their life. Their opinion may be reflexive and the result of lifelong conditioning.

But when it comes to evaluating politicians based on the positions they take, we should generally demand a higher standard of critical thinking than we do for the average person on the street. If a politician is going to publicly take a stand on gay marriage they need to have taken the time to think about the implications of denying equal rights to a whole group of people, and they need to have thought long and hard about whether there is a reason for opposing gay marriage that is both intellectually honest and legally defensible. If a person undertakes that whole analysis, and then still comes back with "I oppose gay marriage because it is new and it makes me uncomfortable" then I take that as evidence that that person at the very least lacks the minimum degree of basic human empathy that I'd want to see in an elected official.   

[SteveRogers]

I didn't say anything about the effect of these views on their legal bearing. The only thing I have been trying to say is that it is possible to not support same-sex marriage without being a bigot. Perhaps you equate opposition to same-sex marriage with bigotry; but you seemed to readily make all sorts of assumptions about my character earlier that were not true. Surely you can acknowledge there mere possibility that there are some people who do not support same-sex marriage without being homophobes, bigots, fundamentalists, and so forth?

Yes, they could be ignorant or stupid, however so often that's coterminous with fundamentalism or homophobia.

Honestly, I have never heard a single coherent argument that addresses the point I made earlier, why distinguish a man-woman relationship from a man-man woman-woman relationship? (except arguments that relied on fundamentalism or homophobia, which are coherent, but wrong-headed and horrible)  I'm open to hearing a coherent argument that meets my criteria.  But, I don't think it exists.  This has been argued by people smarter than you and I in the Federal Courts.  The anti-SSM marriage side has failed to find one rational basis reason for banning SSM.  Maybe you can help them and think of one, but I seriously doubt it.

It might be considered that opposition to gay marriage comes out of a somewhat different intellectual tradition than which modern "rational basis" legal arguments rest upon, and that diverse intellectual traditions can hold coherence or at least not be "stupid."

Your criteria is seems to be that any concept of marriage related to gender qua gender is bigoted by definition, is that right?

I wouldn't say that everyone who opposes gay marriage is a bigot. Many people may be old and set in their ways, they may be working off of a bad set of information about the nature of sexual orientation, and they may have never met a gay person in their life. Their opinion may be reflexive and the result of lifelong conditioning.

I don't think you mean "never have met a gay person in your life". It's as if I told you that you had never met a woman in your life.

Of course, I meant to say they may have never met an openly gay person or someone who they knew to be gay.

[SteveRogers]

I didn't say anything about the effect of these views on their legal bearing. The only thing I have been trying to say is that it is possible to not support same-sex marriage without being a bigot. Perhaps you equate opposition to same-sex marriage with bigotry; but you seemed to readily make all sorts of assumptions about my character earlier that were not true. Surely you can acknowledge there mere possibility that there are some people who do not support same-sex marriage without being homophobes, bigots, fundamentalists, and so forth?

Yes, they could be ignorant or stupid, however so often that's coterminous with fundamentalism or homophobia.

Honestly, I have never heard a single coherent argument that addresses the point I made earlier, why distinguish a man-woman relationship from a man-man woman-woman relationship? (except arguments that relied on fundamentalism or homophobia, which are coherent, but wrong-headed and horrible)  I'm open to hearing a coherent argument that meets my criteria.  But, I don't think it exists.  This has been argued by people smarter than you and I in the Federal Courts.  The anti-SSM marriage side has failed to find one rational basis reason for banning SSM.  Maybe you can help them and think of one, but I seriously doubt it.

It might be considered that opposition to gay marriage comes out of a somewhat different intellectual tradition than which modern "rational basis" legal arguments rest upon, and that diverse intellectual traditions can hold coherence or at least not be "stupid."

Your criteria is seems to be that any concept of marriage related to gender qua gender is bigoted by definition, is that right?

I'm afraid I'm not sure what you mean.  If the argument is that marriage means one man and one woman, because that's what it means, that's circular and therefore fundamentally flawed.  To say, gay people can't get married because marriage is between one man and one woman, that's no type of argument.  The premise for the conclusion can't just be the restatement of the conclusion in different words.

And, my point isn't even really about what is and is not bigoted.  It would help if we allowed ourselves to be fairly politically incorrect and frank about our opinions.  But, my point is that there is a lack of an actual honest to goodness, principled argument on the anti-SSM side.  An argument that lays out a coherent principle that differentiates between homosexual and heterosexual couples AND ALSO explains why that distinction matters in a relevant way.  So, just saying gay people like showtunes too much or gay people are gay, that's not going to cut it. 

The assumption you are making, as I understand it, is that all social institutions must be organized according to principles of deductive reasoning in order to be valid, and that tradition is no guide to how things should be. That simply isn't something that a conservative is going to agree with. Deductive reasoning only takes you so far.  Consider the fact that we are debating whether something is Constitutional, which itself is a tradition.  There is no analytic proof that says we should follow the Constitution, is there?  We attempt to adhere to it because of what the tradition has brought us. Marriage is like that, except it is a much more ancient and universal tradition, with its origins in the most remote past of human history, and with a much more unfathomable history and depth of social ramifications. As we look across cultures, marriage has a gender specific aspect to it, and I don't find it absurd to consider that gender may be significant to marriage not in a single absolute way, but in a panoply of ways which together might be significant. There is the issue of the relation of marriage to procreation, there is the idea of male and female complementarity as basic social and cosmological concepts in the human cultural experience. I support legal recognition of gay unions, and I even support calling them marriages, but to say that a union between two people of the same gender and those of different genders are fundamentally the same in all important respects is not something I feel can be claimed with any confidence.  This is an issue of Chesterton's fence.  The fundamental question here is - might there wisdom in what we have inherited that may be obscured in the myopia of the ideology and politics of the present moment?  The fact that the reasons for something may not be obvious or can be reduced to a simple legal formula does not mean it arises from ignorance or animous.   I see no reason to assume guilt of bigotry until proven innocence when it comes to those who have created and attempted to preserve an valuable institution, even if we come to the conclusion that a transformation of it may be necessary.

Dude, when your view involves denying equal rights to a whole group of people, then the burden should absolutely be on you to state a coherent reason as to why that's the preferable policy.