Fifth Circuit appears likely to strike down gay marriage bans

[politicallefty]

It seems like supporters of marriage equality got dealt a very good hand with the Fifth Circuit. This panel was composed of two Reagan appointees and one Obama appointee. Apparently, things went very well for the plaintiffs:

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I was expecting a pretty nasty draw for the three-judge panel from the Fifth Circuit, but this looks to be almost as good as it can get from this court. Obviously, we're all waiting on whether or not SCOTUS will take up the appeal from the Sixth Circuit. In that case, it may be possible that the Fifth Circuit never has the ability to issue a ruling at all. (Though, ideally, I'd hope that the Fifth Circuit panel would rule in support of marriage equality prior to oral arguments at SCOTUS.) A lot of this may be moot in the time frame we're dealing with, but I never could've imagined a Fifth Circuit panel even possibly striking down gay marriage bans.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

For what it's worth, I was listening to the Mississippi argument, and the lawyer arguing against SSM seemed very unsure of himself - plenty of unexpected pauses and stuttering.

[True Federalist (진정한 연방 주의자)]

I hope you have some basis for your optimism other than that particular quip.  After all, having sex and having families are unrelated according to SSM proponents, so I can't see that quip as indicating a preference for either side.

[7,052,770]

[Associate Justice PiT]

I hope you have some basis for your optimism other than that particular quip.  After all, having sex and having families are unrelated according to SSM proponents, so I can't see that quip as indicating a preference for either side.

     Judge makes joke...so? I'm not seeing it.

[pbrower2a]

I hope you have some basis for your optimism other than that particular quip.  After all, having sex and having families are unrelated according to SSM proponents, so I can't see that quip as indicating a preference for either side.

     Judge makes joke...so? I'm not seeing it.

A joke can tell much truth, even profound truth.

[Associate Justice PiT]

I hope you have some basis for your optimism other than that particular quip.  After all, having sex and having families are unrelated according to SSM proponents, so I can't see that quip as indicating a preference for either side.

     Judge makes joke...so? I'm not seeing it.

A joke can tell much truth, even profound truth.

     It can also tell little. Having been raised by a lawyer, I've heard plenty of stories about judges and juries acting in ways that would indicate one result and then the opposite happened. It would be nice if this fellow is in fact sympathetic to SSM and rules to overturn the bans, but the simple fact that he made a joke during argument is hardly threadworthy.

[Blue3]

When is the decision?

[So rightwing that I broke the Political Compass!]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

[Fmr President & Senator Polnut]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

Awwwwwwwwwwwwww....

[So rightwing that I broke the Political Compass!]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

Awwwwwwwwwwwwww....

And so fell freedom and democracy, not with a bang but with an "awwwwwwwwwwww"

[Fmr President & Senator Polnut]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

Awwwwwwwwwwwwww....

And so fell freedom and democracy, not with a bang but with an "awwwwwwwwwwww"

Well, the Courts are usually ahead of the general community and way ahead of politicans - who are, in essence, cowards.

Freedom and democracy are fine - but please fret away.

[So rightwing that I broke the Political Compass!]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

Awwwwwwwwwwwwww....

And so fell freedom and democracy, not with a bang but with an "awwwwwwwwwwww"

Well, the Courts are usually ahead of the general community and way ahead of politicans - who are, in essence, cowards.

Freedom and democracy are fine - but please fret away.

They definitely "ahead", since judicial activism by definition means that they're selecting the path we're travelling down. That path happens to culminate with judicial tyranny- how cowardly of everyone else to not being chomping at the bit to reach that stage!

[Fmr President & Senator Polnut]

Well aren't we a drama queen?

[So rightwing that I broke the Political Compass!]

I am the least drama queen-esque of all! It is not dramatic to condemn the incipient authoritarianism of the courts!

[IceSpear]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

I'm surprised a Massachusetts Republican still has the energy or will to get outraged over this. How exactly has having gay marriage for over a decade negatively impacted your state again?

[True Federalist (진정한 연방 주의자)]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

Awwwwwwwwwwwwww....

And so fell freedom and democracy, not with a bang but with an "awwwwwwwwwwww"

Well, the Courts are usually ahead of the general community and way ahead of politicans - who are, in essence, cowards.

Freedom and democracy are fine - but please fret away.

Which of course is why abortion is an issue that causes no controversy now that it's been more than four decades after Roe v. Wade.  Roe is a classic example of judges acting way ahead of the politics and is also why Kennedy crafted his awful opinion in Windsor.  He wanted SCOTUS to lead the way, but not get too far ahead of the public, so he crafted a moderate heroic decision that constitutionally was worse than either a complete striking down or a complete upholding.  His piecemeal approach means that Windsor is more adroit politically than Roe was, but I don't think it did much to settle the issue.  I fully expect that we're going to see various rights and privileges that traditionally had been part of a legal marriage be stripped away so as to avoid having them be granted to those in same-sex marriages and then have court cases over those removals.

[🦀🎂🦀🎂]

I am the least drama queen-esque of all! It is not dramatic to condemn the incipient authoritarianism of the courts!

sigged.

[politicallefty]

I hope you have some basis for your optimism other than that particular quip.  After all, having sex and having families are unrelated according to SSM proponents, so I can't see that quip as indicating a preference for either side.

That was merely the part of the article I chose to emphasize. Of course, one exchange like that doesn't mean anything in and of itself. However, as the full article notes (and others that heard the oral arguments), there does appear to be two judges on the panel that are more likely than not to strike down the marriage bans under their jurisdiction.

At this point, with SCOTUS taking up the issue, I have to wonder whether the Fifth Circuit will rule at all. It remains a possibility, but it's also very possible (if not likely) the grant of cert will freeze any further litigation or rulings among the lower courts.

Which of course is why abortion is an issue that causes no controversy now that it's been more than four decades after Roe v. Wade.  Roe is a classic example of judges acting way ahead of the politics and is also why Kennedy crafted his awful opinion in Windsor.  He wanted SCOTUS to lead the way, but not get too far ahead of the public, so he crafted a moderate heroic decision that constitutionally was worse than either a complete striking down or a complete upholding.  His piecemeal approach means that Windsor is more adroit politically than Roe was, but I don't think it did much to settle the issue.  I fully expect that we're going to see various rights and privileges that traditionally had been part of a legal marriage be stripped away so as to avoid having them be granted to those in same-sex marriages and then have court cases over those removals.

On certain social issues, the public grown considerably more progressive over time. On others, such as abortion, the polling has largely been stagnant (although a larger majority does oppose overturning Roe). In terms of getting ahead of the public, the Court has done that many times. This country is far more ready for gay marriage in all 50 states in 2015 than it was for interracial marriage in all 50 states in 1967. I'm sure you've seen the Gallup poll from 1968 (post-Loving) that showed support for interracial marriage at just 20%. That did not stop SCOTUS from handing down a unanimous 9-0 ruling. In fact, it was only at a bare plurality in the early 1990s, still short of majority support.

I actually wonder if Justice Kennedy was actually ready for a 50-state ruling in 2013 based on both Windsor and Hollingsworth. I think he may have tempered his majority opinion in the former upon losing the latter (remember that he wrote the majority opinion in the former and the dissent in the latter). If he was willing to take up the Prop 8 case in 2013 on the merits, I don't see any way he wouldn't have been ready to make a 50-state ruling at that point. I think it was one of the four liberals (possibly led by Ginsburg) that hesitated and was afraid to pull the trigger at that point.

[pbrower2a]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

I'm surprised a Massachusetts Republican still has the energy or will to get outraged over this. How exactly has having gay marriage for over a decade negatively impacted your state again?

Earthquakes. Hurricanes forming on land. Mount Washington erupting as a volcano (it would make a mess of New England). Big cats escaping the zoo. Mammoths and mastodons coming back from the dead. Marauding packs of domestic cats developing a taste for human flesh and the organization necessary to get it (as if dogs). Zombies running amok. The Celtics moving to Las Vegas.

Naw.

[7,052,770]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

And I suppose you were hoping the Supreme Court would strike down the ACA?

[Joe Republic]

Bloody judicial activists. And predictably all the leftists are celebrating judicial coups.

And I suppose you were hoping the Supreme Court would strike down the ACA?

You might be waiting a long time for an answer to that question.

[7,052,770]

With the U.S. Supreme Court set to rule on gay marriage in June, will the 5th Circuit even bother to make a ruling? I would assume that even if the Circuit rules in favor of gay marriage, it would be an automatic stay until June now?

I was really hoping Mississippi wouldn't tie for the last state to have gay marriage, but it looks like that's going to be the case now

[True Federalist (진정한 연방 주의자)]

On certain social issues, the public grown considerably more progressive over time. On others, such as abortion, the polling has largely been stagnant (although a larger majority does oppose overturning Roe).

I would think that would likely be because most people think overturning Roe would lead to an immediate nationwide ban on abortions, and certainly that's not the position that has majority support in this country.  If we did have a national abortion law, I think the position that would be most in line with national public opinion would be to have abortion be generally legal in the first trimester, but with considerable restriction thereafter.  That is more conservative than what SCOTUS currently allows, but falls far short of a full ban.  That said, it Roe were overturned, there are a number of states that would ban abortion, tho some of those bans would likely be reversed after an election cycle or two.  Overturning Roe would politically energize the pro-choice side considerably, tho not enough to assure that abortion would be available in every state.

[pbrower2a]

With the U.S. Supreme Court set to rule on gay marriage in June, will the 5th Circuit even bother to make a ruling? I would assume that even if the Circuit rules in favor of gay marriage, it would be an automatic stay until June now?

I was really hoping Mississippi wouldn't tie for the last state to have gay marriage, but it looks like that's going to be the case now

The Fifth Circuit has no cause to delay making a ruling. If the Fifth Circuit rules in favor of SSM and allows a short stay for appeal, then the Supreme Court will almost certainly uphold the ruling as it has for other rulings favoring SSM. (States have a right to the stay so that they can make changes in applications for marriage licenses so that  language such as:

"Marriage shall be granted only to a man and a woman both at least 18 years of age without parental consent or to a man and a woman, one or both of whom is at least 16 years of age and has parental consent, no closer in blood relationship than first cousins"

becomes

"Marriage shall be granted only to two human beings both at least 18 years of age without parental consent or to a man and a woman, one or both of whom is at least 16 years of age and has parental consent, no closer in blood relationship than first cousins"

with gender-neutered descriptions of "husband" and "wife".