My understanding is there are about 10 cases or so they can decide whether or not to take up. I think some of this is happening tomorrow, and that we're likely to know what cases they might take up by Monday.

If they don't take up the Prop 8 case then the lower court's ruling should stand and marriage equality would likely resume in California in short order. I haven't done the math, but I've seen some suggest that, combined with the other states that recently passed marriage equality, would bring over a quarter of the country's population into marriage equality states. Whatever the actual percentage is, it should be a significant margin.

If they do take up these challenges, then decisions could be made by June, which could have much broader connotations for the whole country. There exists a possibility that NC's amendment 1 could die shortly after its first birthday.

An old wikipedia quote:

Quote :

"Critics of DOMA argue that the law is unconstitutional on several grounds: * DOMA exceeds congressional authority in violation of the Tenth Amendment to the United States Constitution. * Congress over-reached its authority under the Full Faith and Credit Clause. * The law illegally discriminates and violates the Equal Protection Clause. * The law violates the fundamental right to marriage under the due process clause."

Hopefully DOMA goes the way of DADT and dies soon. With 4 states voting in marriage equality or opposing marriage discrimination for the first the time earlier this month, and the first openly gay US Senator being elected recently, the odds seem good.

11/29/2012 11:54:12 PM

I'd just like to state that it irks me when the left cites the 10th Amendment to support things like this or pot legalization.

It's not that you're wrong; it's that you (collectively) argue until you're blue in the face against the clearly stated federalism in the Constitution. These things are anathema to the left; how can you (collectively) claim protection under the 10th Amendment with a straight face?

What's it gonna be--limited government or living document that allows the Feds to do whatever the fuck they want?

[Edited on November 30, 2012 at 12:03 AM. Reason : and yes, DOMA and NC Amendment 1 are terrible laws.]

11/30/2012 12:02:46 AM

The SC will never take on this topic until:

1) The country moves politically into a position to accept gay marriage.

2) The SC has a liberal tilt to it instead of the current conservative tilt.

3) A majority of states have passed laws establishing gay marriage. The SC cannot have legitimacy on this issue until 2/3 of the states or so have passed it and there is a clear NEED to have federal policy concerning this issue.

It will be another 4 years or so until they touch DOMA and say that marriages in one state are valid in all states and probably another 4-6 after that they make gay marriage the law of the land. It's not really an issue worth mentioning until one of Scalia/Thomas/Kennedy retire. If I'm wrong on this I'll gladly eat my words.

11/30/2012 12:38:01 AM

^^I see a false dichotomy here.

11/30/2012 2:25:04 AM

^^^You sound like a bon-a-fide partisan, trying to turn this into a left vs right argument. The first thing you do is attach the issue to one political faction and then attack that faction's behavior.

Not to mention the fact that both sides are guilty of 10th amendment hypocrisy, and this issue isn't special in that regard.

11/30/2012 8:46:52 AM

also not to mention that is just a small part of a very solid argument, so even if you discount it completely the argument stands up

11/30/2012 10:50:47 AM

I don't see any reason to discuss this. They're kings on their thrones. Whatever they decide, we have no input in it. The fact that we have historically relied on them as the only protection of civil liberties is disgusting. Horrible system of government.

11/30/2012 11:10:33 AM

I think the majority of soap box discussions tend to be oriented around deepening understanding of issues and debating different philosophies rather than trying to make a difference in the real world. I don't think that disqualifies a topic from discussion, but I agree that action-oriented discussions are important too.

11/30/2012 11:28:42 AM

^^If you think the American form of government is horrible, do you have an example of a government that you think works efficiently?

11/30/2012 11:32:43 AM

he's trolling, don't engage him

11/30/2012 11:39:59 AM

9 people with life tenure deciding the fate of hundreds of millions is not sustainable

[Edited on November 30, 2012 at 11:44 AM. Reason : .]

11/30/2012 11:42:24 AM

having fun, smc?

[Edited on November 30, 2012 at 11:44 AM. Reason : haha, you said 12]

11/30/2012 11:43:53 AM

I did. Caught it though.

11/30/2012 11:45:02 AM

Quote :

"also not to mention that is just a small part of a very solid argument, so even if you discount it completely the argument stands up"

Agreed, as stated in my post. I just take issue with the appeal to the 10th Amendment.

And yes, the right does it, too (to a lesser but still huge extent)

11/30/2012 12:22:51 PM

Quote :

"What's it gonna be--limited government or living document that allows the Feds to do whatever the fuck they want?"

The latter, obviously. Cite the Constitution when it's convenient and ignore it when it isn't. It's not more complicated than that. Most people involved in politics have some vision for what the government should and shouldn't do. Constitutionality is a secondary concern; decide what we want government to do, then determine why it's constitutional. No, you don't ask if it's constitutional, at least not until you have to sell it to the public.

I don't think the judges are much different. They know better than any of us that the Constitution is just a piece of paper and that they are the ones who determine its meaning. They're humans. They can't go too far off the range, in general I don't expect them to separate ideology from adjudication. It's extremely important they they appear to be impartial, and they may not be influenced by electoral politics, but that doesn't mean they're unbiased or "objective" in any way.

11/30/2012 1:05:05 PM

If the movie Lincoln is remotely accurate, it could have never been anything other than a living document.

The political climate was still extremely political and nuanced when the constitution was ratified, as it was today.

It's false lionization of both our country and the founding fathers to presume that the constitution was meant to be viewed as am almost religious document.

The fact of the matter is that even if you could flip a switch to force everyone to believe and accept the constitution as ultimate and literal, politics will still always be about humans trying to convey information to other humans.

Blindly harkening back to "the constitution" does literally nothing to aid in this communicative process. It's more important to explain why a philosophy, on its merits, is the best choice for us to proceed forward.

11/30/2012 2:02:06 PM

Everything sounds good, just one little change:

Quote :

"politics will still always be about humans trying to convey information to control other humans."

11/30/2012 2:06:00 PM

So like I originally said Monday was probably the earliest we'd know anything, and now it looks like it could even be next Friday before we know what cases they take up. Though I am anxious to see what cases they pick, putting it in the context of cases that are several years old, another week doesn't seem too long.

On the other hand, Maryland Attorney General Gansler and Governor O’Malley are indicating that marriage equality will begin there on Jan 1st. It is nice to have a date certain on that.

11/30/2012 5:45:35 PM

Quote :

"It's false lionization of both our country and the founding fathers to presume that the constitution was meant to be viewed as am almost religious document. The fact of the matter is that even if you could flip a switch to force everyone to believe and accept the constitution as ultimate and literal, politics will still always be about humans trying to convey information to other humans. Blindly harkening back to "the constitution" does literally nothing to aid in this communicative process. It's more important to explain why a philosophy, on its merits, is the best choice for us to proceed forward."

No, the problem is that if we aren't going to abide by it, there is no point in having it. We need to either update it and abide by it, or just come out and say explicitly that it's a historical relic and has no impact on governance today, and that we will have no framework for what government can and cannot do, other than whatever we deem to be a good idea at the time.

Otherwise, you end up with what we have now, which is the worst of both worlds--the rule of law offers no meaningful protection against governmental overreach and intrusion, yet is an obstacle occasionally to doing what we want to do.

[Edited on November 30, 2012 at 11:10 PM. Reason : ]]

11/30/2012 11:10:25 PM

Quote :

"Cite the Constitution when it's convenient and ignore it when it isn't."

That's only half of every political debate.

Take out the word "Constitution" and replace it with "Bible" and you get the other.

12/1/2012 1:25:42 AM

d357r0y3r, methinks the Constitutionality of any proposed measure is deffo on the minds of the people who propose it; as an example, long before the introduction of Obamacare or even the election of Obama (but probably around the start of Hillary Clinton's first Presidential campaign), concerns were expressed that an individual mandate might not be Constitutional, because the government didn't obviously have the power to compel the purchase of a product or service and it hadn't attempted to do so before, so the Federal courts hadn't weighed in on it (later on, 2 years after passage and 1 1/2 years before full implementation, a watered-down "mandate" that didn't actually compel such a purchase, but rather would tax non-exempt people who failed to make that purchase, was narrowly found Constitutional under the taxing authority, in a ruling that also established that the government does not in fact have the general power to compel the purchase of a product or service; however, a less controversial measure to strong-arm the states into expanding Medicaid was found to be taking the Court's earlier weakening of federalism too far).

12/1/2012 4:50:49 AM

http://nbcpolitics.nbcnews.com/_news/2012/11/30/15577062-no-word-from-supreme-court-on-same-sex-marriage-cases?lite

Quote :

"Next important day: Monday, December 3rd. There is one advantage: the orders list comes out at a set time -- 9:30 a.m."

Given how slow courts are, if I had to bet at this point, I think the 7th is more likely than the 3rd, but at least we'll know early on the 3rd if that's the day.

I recently read something about court treatment of African Americans in the past, where if the more discriminatory result would come from following "scientific" standards of the time, they would use that, and if the more discriminatory result would come from using "common understanding" standards then they would go with that, without caring about consistency so much as twisting logic, law, and precedent to justify their opinions.

Even today it can feel like courts, while not beholden popular opinion, are afraid to get way too far ahead of it, regardless of what the law justifies. In that sense at least, I expect having a lot of recent LGBT electoral victories and a few years of LGBT equality winning slim majorities in the national polling, helps the chances of these DOMA challenge cases (whether it should or not).

Here's some discussion of legal precedents though:

12/1/2012 5:42:42 PM

Quote :

"No, the problem is that if we aren't going to abide by it, there is no point in having it."

This. A thousand times, this. Decide right now if you care about the Constitution and think it should be followed. If you don't like it, fine, say so. But if you say it doesn't matter, then don't come crawling back crying that something "isn't Constitutional." When you piss on the very thing which is supposed to establish limits on the government, you have literally zero right to complain when government acts without limit.

12/2/2012 11:06:26 AM

ITT aaronburro is setting up a strawman: There's a difference between saying that the Constitution is open to interpretation and saying that it doesn't matter.

12/3/2012 1:39:18 AM

no, its the same thing. if you can always interpret it to suit your current needs then it doesnt actually matter.

12/3/2012 9:12:42 AM

The strawman part is that you can't "always interpret it to suit your current needs." Your interpretation isn't a priori correct and neither are interpretations you don't agree with.

12/3/2012 10:43:12 AM

Clearly you are applying your logic unreasonably.

12/3/2012 4:31:52 PM

Maybe there's only so much interpretation can accomplish when you're talking about a 200 year old document written during a time when some people were farm equipment.

12/4/2012 8:36:10 AM

if the interpretation changes over time then theres no point in the law existing. it should either be interpreted with the original intent and then changed to meet the current needs or it doesnt matter at all and we should just get rid of it.

[Edited on December 4, 2012 at 9:53 AM. Reason : a]

12/4/2012 9:53:10 AM

Quote :

"The strawman part is that you can't "always interpret it to suit your current needs.""

Except, that you can always interpret it to suit your needs. you do it in baby steps, and then use those baby steps to build a giant leap across it. One need look no further than the absurd abuse of the Commerce Clause to see this in action. Hell, look at Kelo vs New London. The quintessential example used in every civics class before that case was that eminent domain could not be used to take your land and give it to walmart. Yet that is effectively what happened.

^ exactly. If you don't like what it says, then change it. Amend it, and follow the new version of it.

12/4/2012 9:21:50 PM

ITT some people believe that there's no ambiguity in terms like "excessive" and "unusual"

nope none at all

12/5/2012 6:37:57 AM

The interpretation doesn't change simply as needed to fit any situation, it gets clarified and refined by judicial review and case law. That's how it is supposed to work, that's how it was designed.

Quote :

"if the interpretation changes over time then theres no point in the law existing. it should either be interpreted with the original intent and then changed to meet the current needs or it doesnt matter at all and we should just get rid of it. [Edited on December 4, 2012 at 9:53 AM. Reason : a] "

That doesn't make sense.
"If the interpretation changes, there is no point. It should be interpreted once and then reinterpreted to meet the current needs..." Is what that says.

12/5/2012 7:00:24 AM

http://aftermarriageblog.wordpress.com/2012/12/05/mexican-supreme-court-strikes-down-gay-marriage-ban/

Quote :

"Mexican Supreme Court strikes down gay marriage ban Posted on December 5, 2012 by JL The Supreme Court of Mexico issued a unanimous ruling Wednesday afternoon that paves the way to universal marriage rights in the country. The actual ruling won’t be published for a little while, but the gay rights advocates who brought the case are proclaiming that today’s ruling “opens the door to equal marriage in the whole country.” The court ruled on behalf of three same-sex couple seeking to marry in the southern state of Oaxaca. The court had already ruled in 2010 that gay marriages performed under a Mexico City ordinance had to be recognized nationwide. With this precedent, the remaining bans on gay marriage in most Mexican states could quickly fall."

12/6/2012 1:08:31 AM

Quote :

"That doesn't make sense. "If the interpretation changes, there is no point. It should be interpreted once and then reinterpreted to meet the current needs..." Is what that says. "

no thats not what i said. i said it should be changed, not given a different interpretation. Meaning the law should be changed through the legislative process. NOT, as you would suggest, through personal desired interpretation. the former requires democratic buy in and results in equal enforcement, the later leads to inequality as the mood of the court would determine outcomes, rather than rule of law.

Legalization vs decriminalization of pot is a great example of this. Legalization is correct because it means theres a clear law in place and everyone understands how it works. With decriminalization everyone maybe thinks its ok, but then you end up with unequal justice when the law is ignored for one person and enforced on another. Decriminalization is a tool for the system to punish those it doesn like (minorities) while giving its friends a pass. it is a bad thing.

Now this whole discussion came about because typically these folks like to interpret the law however they want at the time rather than going through the process. The joke is that they now want to use the 10th amendment (which they love to ignore more than anything else) as a protection against gay marriage bans. Personally I support this because it is in fact a strict interpretation. But in a world were these very same people would ignore the 10th ammendment for just about every other situation, I cant really help but laugh.

12/6/2012 10:31:04 AM

luckily you can always penalize people via the tax code to get around the 10th.

12/6/2012 10:32:03 AM

Quote :

"That doesn't make sense. "If the interpretation changes, there is no point. It should be interpreted once and then reinterpreted to meet the current needs..." Is what that says. "

They're just butthurt that it's not getting interpreted they way they want it to.

Quote :

"^ exactly. If you don't like what it says, then change it. Amend it, and follow the new version of it. "

Except the new version needs to be interpreted too. Oh shit. I guess we'll just have to keep amending and re-interpreting it as context and meaning change. Wait a tick, that's what we do RIGHT NOW!

12/6/2012 10:58:00 AM

The ambiguity that lends itself to interpretation is exactly why most laws are long and written in "legalese." This is of course why I can't help but roll my eyes at the "All laws should be less than a page long and written in plain English!" crowd.

12/6/2012 11:04:04 AM

It just broke. They are taking up the Winsdor DOMA challenge case and the Prop 8 case.

12/7/2012 3:18:37 PM

http://news.blogs.cnn.com/2012/12/07/supreme-court-will-tackle-same-sex-marriage/

12/7/2012 3:41:34 PM

I hope SCOTUS uses this opportunity to really strike a blow for the 10th Amendment (i.e., I hope they strike down DOMA and don't do it just on the grounds of the 14th Amendment's "equal protection" clause, which, interpreted strictly as written, is applicable to States, although there is precedent for its applicability at the Federal level as well).

The left will bask in the satisfaction of the victory; they won't be about to look the gift horse in its federalist mouth. The right will then have a choice to make; whether they are going to be for small government and upholding the Constitution, or for unpopular social conservatism that will then be explicitly contrary to what they supposedly stand for. The timing might be good, with the GOP still reeling from unambiguous defeat in the 2012 election and doing a little soul-searching as a party.

The [unlikely] best case scenario would be a tie-in with the marijuana debate surrounding the WA and CO legalization, and setting into motion a fundamental reboot in federal power.

...and along with the fiscal cliff debates, what if DOMA being overturned became another catalyst causing us to take a hard look at our tax code, due to the implications for tax filing, federal/military pay and benefits, etc. What if a bunch of roommates and friends start getting "married"?


[Edited on December 8, 2012 at 10:12 PM. Reason : a guy can dream, right?]

12/8/2012 10:08:32 PM

You're reasoning doesn't make sense, roommates and friends getting fake married? Why not just fake marry opposite sex roommates and friends, that's way easier bec.ause you don't have to pretend to be gay. There is no reason to expect fake marriages at a rate any different than we see now.

I also don't see how you think this will be decided based on states rights and not more in line with Lemon v. Kurtzman and in line with the lower courts decisions. We currently leave all of this to the states, so why would a decision against DOMA and supporting same sex marriage be a victory for states rights? It's much more likely that states come out of this with less freedom to make their own unconstitutional decisions regarding this.

12/9/2012 10:38:24 AM

Civil rights aren't a states right issue, and I don't expect states to be given the right to discriminate differently against gays. That's an absurd situation.

12/9/2012 11:19:16 AM

I am hoping they send a big fuck you to all who voted for Amendment One with this. I assume it could be stricken down by their decision if the states are said not to have the authority to ban same sex marriage.

12/9/2012 11:57:21 AM

it's so cute when libertarians try to be taken seriously

[Edited on December 9, 2012 at 3:05 PM. Reason : .]

12/9/2012 3:05:13 PM

You all seem to misunderstand what I'm saying. I hope they shitcan DOMA on 10th Amendment grounds, and shitcan CA Prop 8 on 14th Amendment grounds.

12/9/2012 3:44:43 PM

I'd prefer if they kill DOMA based on the equal protection clause in order to make it very clear that there is nothing wrong and there is no difference in the eyes of the government if two people of the same sex get married. There is no secular reason to oppose it, and I hope it gets thrown out because of that.

But I'll be happy really any way that its thrown out.

12/9/2012 5:16:49 PM

If they struck down CA Prop 8 on those grounds, wouldn't that accomplish the same thing? I'm hoping they do that in order to use DOMA to strike a blow for federalism. The left would still be placated by the huge policy wins, the Court would further its legitimacy and impartiality bona fides that Chief Justice Roberts seemed [overly] concerned with in the Obamacare decision, and exactly like the Obamacare decision, the conservative SCOTUS majority could use the opportunity to give the left what they want in the short run, and everyone else at least something they need in the long view.

The only losers would be homophobic social conservatives, and, well, who the fuck cares?

[Edited on December 9, 2012 at 8:19 PM. Reason : ]

[Edited on December 9, 2012 at 9:59 PM. Reason : ]

12/9/2012 8:18:22 PM

Ah, gotcha, I understand your position now.

12/9/2012 8:28:18 PM

http://abcnews.go.com/US/wireStory/scalia-quizzed-njs-princeton-gay-issue-17929511#.UMePIoO1XFO

Quote :

""It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?""

Calling out a logical fallacy with a logical fallacy, nice. Scalia needs to fucking die already.

(you can have moral feelings against homosexuality, its just unconstitutional and generally a dick move to discriminate because of them)

12/11/2012 2:57:16 PM

Argumentatum ad absurdum is not a logical fallacy.

Scalia's point is that there are many laws based on morality. If the Supreme court were to use the argument that it's unconstitutional to force one's view of morality on others in order to strike down state laws banning gay marriage, they would have to strike down bestiality laws and other "morality laws" as well.

[Edited on December 11, 2012 at 5:02 PM. Reason : 2]

12/11/2012 4:49:08 PM