Supreme Court Strikes Down Defense of Marriage Act, Punts on Prop. 8

In a pair of narrowly divided opinions issued this morning, the U.S. Supreme Court ruled that the federal government violated the Constitution by refusing to recognizing same-sex marriages that are legally sanctioned by a state while avoiding the larger question of whether the U.S. Constitution protects the right of all same-sex couples to marry nationwide.

Writing for a 5-4 majority in United States v. Windsor that included the Court’s liberal justices, Justice Anthony Kennedy held that Section 3 of the 1996 Defense of Marriage Act “violates basic due process and equal protection principles.” According to his ruling, the law’s “principal effect is to identify a subset of state-sanctioned marriages and make them unequal" while DOMA’s "principal purpose is to impose inequality.”

In the second gay marriage case, Hollingsworth v. Perry, Chief Justice John Roberts, writing for a 5-4 majority that included Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, ruled that the Supreme Court lacked jurisdiction to hear the legal challenge to California’s voter initiative banning gay marriage, Proposition 8, because the initiative backers who defended the law in federal court lacked the requisite legal standing before the federal judiciary.

As expected, today’s rulings advance the cause of gay rights by striking down a key element of the Defense of Marriage Act while leaving the larger question of gay marriage’s constitutionality to be decided in a future case.

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  • A Mathematician||

    Fuck Thomas all these justices suck ass

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  • Auric Demonocles||

    [The Supreme Court] ruled that [they] lacked jurisdiction to hear the legal challenge to California’s voter initiative banning gay marriage, Proposition 8, because the initiative backers who defended the law in federal court lacked the requisite legal standing before the federal judiciary.

    Can someone explain this to me? From my non-legal background this sounds like they are saying the people who passed the law shouldn't have been able to defend it.

  • Tony||

    The state refused to defend the law, and Roberts says the Court has never held that a private party has standing to defend a statute when state officials refuse.

  • Auric Demonocles||

    That would mean state officials can effectively override ballot initiatives.

  • yonemoto||

    Constitutional Amendments, but we already knew that.

  • Tony||

    The Court found only that there was a lack of standing at the court of appeals. The district court retains jurisdiction (where Prop. 8 was ruled unconstitutional, but where presumably things could have gone the other way).

  • yonemoto||

    since when do district courts have the authority to determine the federal constitutionality of a state constitution? Shouldn't it go to supreme court?

  • ||

    I'll be honest, I'm kind of leary of the idea that the fedgov should have a say in stategov constitutions.

  • Auric Demonocles||

    In regards to being constitutional they should.

    You can't add something to your state Constitution that outlaws guns or allows slavery.

  • Pro Libertate||

    Look, slavery is legal, so long as you convict the slave of something first:

    "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

  • Emmerson Biggins||

    + the draft. For some reason. I guess it's an "implied" power. AKA : FYTW.

  • WTF||

    And yet we've had the draft. Because FYTW.

  • Anvil||

    Most of us are

  • thorsmjollnir||

    Since the ratification of the Supremacy Clause.

  • Pro Libertate||

    I can explain it to you: The courts have twisted standing into an excuse to avoid ruling against the government. It's that simple.

    Just as a matter of logic, given that a number of civil liberties can be infringed upon solely by government statements (let alone laws), usually in the sense of chilling protected behaviors, any citizen in the jurisdiction should have standing. It's ridiculous to give the government the benefit of the doubt when it's the wrongdoer.

  • Jgalt1975||

    If you have a civil liberty that has been infringed, you have standing. Prop 8 supporters haven't been deprived of any property interests or other recognizable rights, so they have no standing.

    To use an example from a less controversial context, Colorado liquor regulations allow competitors to object to a party's application for a liquor license, but are silent on what happens after the Liquor Enforcement Division rules on the application. The Colorado Supreme Court has held that if the Liquor Enforcement Division denies the liquor license, the applicant has a right to appeal to the courts because it has a property interest in getting a liquor license to allow it to operate. However, if the Liquor Enforcement Division grants the liquor license, competitors who objected to the application in the agency proceeding have no right to appeal to the courts because a business has no property interest in suppressing competition. SCOTUS is applying a similar rationale here -- Prop 8 supporters have no standing to enforce Prop since it confers no legally cognizable benefit on them.

  • Pro Libertate||

    I know the legal reasoning. I was talking actual logic.

  • Auric Demonocles||

    Disbar this man!

  • Dinerboy||

    DOMA is nakedly anti-equal-protection. The fact that it only went down 5-4 suggests that the "ick" factor remains strong in some.

  • Andrew S.||

    Especially Scalia, who can't help but get his "it's icky!" comments on, similar to what he did in Lawrence v. Texas.

  • Spokker||

    What is this icky shit?

  • ||

    The dissenters based there opinions on standing and lack of controversy not the merits.

  • John||

    It is always sad and disappointing when people on your side who should know better act in completely stupid and unprincipled ways because they like the results in a particular case.

  • Raston Bot||

    Alito's section II (which Thomas joined) says the Constitution does not guarantee the right to gay marriage and then something about due process only applying to rights enshrined in our country's history.

  • John||

    So he thinks the Court can't just make up rights out of thin air? What a novel concept.

  • Auric Demonocles||

    What a homophobic bigot.

  • John||

    I know. I am terrible. I mean if the Court can decide gay marriage, even though being gay was a felony up until the 1970s, is a right protected by the Constitution, they would never use that precedent to decide there is a right to housing or education or any other progressive pony. That would never happen. The Left would never use the courts to enforce their policies in circumvention of the Democratic process. Anyone who thinks otherwise is just a homophobe.

  • ||

    The court didn't decide shit John. What's so hard to understand: If I meet Lola on the internet and run off to Vegas to get married it is automatically recognized in all 50 states and by the federal government. If you and I go to Vermont and get married the feds say fuck you we and no other state has to recognize shit.

    That is blatantly not giving equal treatment.

  • John||

    So if you marry your cousin in Tennasse or New York, where it is legal, the other states have to recognize your marriage? No they don't.

    It is not hard to understand designate. You like gay marriage. Good for you. What is not good is your desire to rape the Constitution and sign on to rule by robbed overlords to get it. That may get you gay marriage today, good luck when other people start using such rule for their purposes.

  • ||

    John is right, states aren't required to accept all straight marriages from other states either.

    It is irrelevant though, that part of DOMA was not at issue and was not overturned.

  • ||

    Yes, they should actually.

    This is not about my liking gay marriage John (but thanks for the automatic assumption that anyone that thinks DOMA is wrong automatically supports GM, no wonder some people call you red tony). This is about equal treatment by the fedgov. I suppose you agree with Tony that it'd be totally okay for New York to ban guns, even if you legally purchased and owned one in Pennsylvania before moving there.

  • LynchPin1477||

    The issue here seems to be whether the state can recognize certain rights and grant certain privileges to one group of people (heterosexuals) but deny them to another (homosexuals). I don't see how that immediately leads to saying that someone has the right to be provided with an education, housing, etc.

  • John||

    The issue here seems to be whether the state can recognize certain rights and grant certain privileges to one group of people (heterosexuals) but deny them to another (homosexuals).

    No that is not the issue. States by passing laws and operating at all deny certain rights to different people. Even if there is a "right to homosexual marriage" there will not be a right to polygamy or marrying children or such. States have always had the right to discriminate. If the didn't, they wouldn't be able to pass any laws. The question is why is "gay marriage" one of those things that the state is no allowed to discriminate against. And the answer is "well because we like it and we can't get the dumb ass voters to agree with us".

  • ||

    OMG, not the polygamiezzzz, whatever will we do??!!11

  • JWatts||

    It's a valid argument. There is no legitimate argument against any type of marriage or relationship among consenting adults.

    If your are somehow for gay marriage but against polygamy you are logically inconsistent.

  • LynchPin1477||

    The state should really only have the right to discriminate against people who violate the rights of others, which is to say, criminals. "Why is "gay marriage" one of those things that the state is no allowed to discriminate against?" Because two gays getting married doesn't violate the rights of anyone else.

    As for your other examples, I don't think the state should outlaw polygamy. Children present a special case because there are issues of whether or not they can truly provide informed and well reasoned consent. Ideally this would be decided on a case-by-case basis but that really isn't feasible, so there is an age above which the state treats you as a legal adult.

  • Auric Demonocles||

    Homosexuals aren't denied the same rights and privileges that straights get. They just don't want to utilize them.

    Just like straights wouldn't want to utilize gay marriage if it was legal.

  • ||

    I mean if the Court can decide gay marriage, even though being gay was a felony up until the 1970s, is a right protected by the Constitution

    I see. That's a classy line of reasoning. I'll come back in 150 years and maybe then I can be treated like an equal citizen of the US, or will it just be that we were felons when the constitution was written so it doesn't matter?

  • Auric Demonocles||

    jesse, the courts are only 1 of the 3 branches.

  • ||

    Thank you, AD, I was unaware. I would prefer to see this taken care of legislatively, but I think it's galling for him to argue that because homosexual behavior was illegal when the Constitution was written that gay people have no recourse to equal protection under the law. He isn't just arguing that he believes that SSM and OSM are not inherently the same, but that the Constitution CANNOT view them as such because Colonial Puritanism.

  • Auric Demonocles||

    They have equal protection under the law. Gays can get married to people of the opposite gender just like straight people (or asexuals) can.

    You want there to be a right that clearly didn't exist when the Constitution was written. That's fine, and I actually agree that (barring just getting the gov out of marriage all together) would be good. But the way to do that is amend the Constitution, not "reinterpret" it.

    Though John is wrong that this is new. See Roe v Wade's right to privacy (which also oddly only seems to apply to abortions).

  • ||

    So if we ban interracial marriage it's not an issue of equal protection because you can marry anyone of your own race just like everybody else can?

    I really don't find that particular argument persuasive, but that's influenced by my experience, which is that my relationships are pretty equivalent to the relationships of my straight peers. I can understand why one could come to a different conclusion if they saw any given gay relationship as significantly different.

  • Raston Bot||

    Out of thin air? Would a juvenile rights flow chart go something like this: life -- self ownership -- something something contract -- marriage -- gay/straight/this/that/other?

  • John||

    Yes, out of thin air. There wasn't even such a thing as "gay marriage" 40 years ago. And now you are telling me that it is protected by an Amendment passed in the 1860s?

    Make whatever arguments you like. But understand that everyone else can make those same arguments for whatever policy they like and consider a "right". If there is a right to gay marriage in the 14th Amendment, why is there not a right to a proper school there too? Isn't education a right? Why do you hate children Raston? Just because no one thought of such a thing in the 1860s doesn't mean it is not there. They hadn't thought of gay marriage either. And that is there. You can't go anywhere without a good education. And if the public chooses to cut public education funding, the courts are just going to have to step in and make sure people's rights are protected.

    You see where this goes. Once you start saying "rights" can be found in the document because a group of judges or elites or whoever things they are there, then there is no end to it.

  • ||

    Jesus christ you can be dense on this issue.

  • LynchPin1477||

    But isn't the issue here equal protection under the law? The fact that something didn't exist in 1860 doesn't mean that you can deny it to certain people based on some arbitrary criterion like sexual preference.

    Also, another way of looking at this is that the gays have always had the right to marry, but it just hasn't always been recognized.

  • John||

    But isn't the issue here equal protection under the law?

    Sure there is. But that doesn't mean the law can't make distinctions. The issue is is "homosexuality" one of those distinctions. And since the law criminalized the act for pretty much the entire history of the Constitution, it is a good bet that yes it is.

    If you want gay marriage, win a fucking election. You are always on here talking about how the debate is won. Well good for you. Go get the fruits of your labor and stop raping the Constitution.

  • John Galt||

    Rape! Rape!

  • LynchPin1477||

    And since the law criminalized the act for pretty much the entire history of the Constitution, it is a good bet that yes it is.

    Do I really need to bring up the plethora of things that the law (wrongly) criminalized for "pretty much the entire history of the Constitution"?

  • Locke||

    THIS.. "Don't like slavery? Win an election! Oh yeah, you can't vote"

  • Ecdysis||

    I think John is right here, even though I support gay marriage. Equal protection of the laws means you can't arbitrarily discriminate based on class. But that is not to say you cannot discriminate on class. Indeed, every law does. (Drinking laws by age, rape laws against rapists, income tax laws on income). The question is whether it is inherently arbitrary to do so. I would submit that those who do not see any legitimate justification for keeping traditional marriage at all are the close-minded bigots. I disagree with these arguments, that is why I support gay marriage on the federal and state level. But taking it out of the hands of the people, and placing it in the hands of 5 people in robes in not the right approach.

  • ||

    It would be arbitrary if the fedgov only recognized the income of men, even if Kentucky recognized the income of men and women.

    It's not like this decision means the fedgov can force all the states to allow gay marriages to be performed. Does it?

  • Ecdysis||

    No, not this decision. But that is an interesting question because the equal protection clause of the 14th Amendment is construed virtually the same as the 5th Amendment. Here, the distinction is discriminating lawful same-sex marriages vs. lawful traditional marriages. But I could see a quick jump from to discriminating same-sex couples vs. traditional couples. The principles (although rather incoherent in Kennedy's opinion) seem the be analogous. I would be interested to see if Kennedy would make a distinction in the later case to keep it in the hands of the states.

  • Locke||

    So you agree with the court in Plessy v Ferguson?

  • Locke||

    So you agree with the court in Plessy v Ferguson? And disagree with Brown v Board of Education?

  • Locke||

    So you agree with the court in Plessy v Ferguson? And disagree with Brown v Board of Education?

  • Locke||

    So you agree with the court in Plessy v Ferguson? And disagree with Brown v Board of Education?

  • Locke||

    So you agree with the court in Plessy v Ferguson? And disagree with Brown v Board of Education?

  • Locke||

    So Brown vs. Board of Education should have gone the other way?

  • Locke||

    Oh shit, sorry about that.

  • Major Pain||

    Ecydtsis: This was designed as a constitutional republic; not as a democracy. These things were never "in the hands of the people", and for very good reason: The people have a consistent and dogged tendency to take rights away from anyone who they perceive as dissimilar to themselves. Blacks, women, immigrants, atheists, homosexuals, polygamists, etc. Also, rape laws don't "discriminate based on class"; they discriminate because we currently think rapists do direct harm to those they rape, or in other words, because they infringe on the rights of others. When the feds try to take the rights of gays away that the states have recognized, that's very similar: infringing on the rights of others. DOMA was stupid; the bias against homosexuals was (and is, wherever it remains) stupid; and frankly, most of the arguments made in favor of DOMA here are at about the schoolyard level.

  • Raston Bot||

    Education and housing? I have to read the entire decision before trying to make that leap. I thought it was a "contract between consenting adults" issue.

  • John||

    I thought it was a "contract between consenting adults" issue.

    First it is not. They didn't decide the issue. They destroyed standing instead, which is a lot worse. Beyond that, you think it is that. And good for you. But why do you think everyone else will think that? Liberals can and will look at it as a "everyone deserves the same dignity and treatment from the government" issue.

    Either you believe the Constitution means something and that something is not dependent on your personal preference from what you would like it to say or you don't. If you don't and you think the Constitution means "the Court have the power to strike down any law I think is unjust" then you can't really bitch when people use that principle to take out laws and circumvent the democratic process to get rid of laws they don't like.

  • ||

    I love that you keep saying that this decision rapes the constitution. It's totally not sensational and is a completely rational argument.

    (I do agree that the decision on the Prop 8 case was horrible.)

  • John||

    I love that you keep saying that this decision rapes the constitution.

    The actual decisions rapes standing. But yes if you decide the 14th Amendment includes a right to "gay marriage", you are necessarily saying the Amendment creates a right to not only engage in an activity that was a felony at the time of the passing of the Amendment, but that the government must recognize your participation in that activity and grant you rights accordingly.

    If you can find a "right" under those circumstances, you can find a right under any set of circumstances and there will be no stopping the expansion of the 14th Amendment. Indeed, why do you think progs want a right to gay marriage so badly? Do you really think they care that much about gays? You don't think they have ulterior motives in trying to get such a precedent?

  • ||

    The 14th amendment guarantees equal protection and equal standing. Refer to my previous example and explain to me how DOMA didn't violate those.

    (Unless I'm totally wrong and this decision does mean that the fedgov can make all 50 states allow gay marriages. My understanding is that the decision said the fedgov has to recognize ssm's performed in states where they're allowed.)

  • Automata||

    So which part of Windsor found a right to gay marriage in the 14th amendment?

  • robc||

    What does marriage have to do with a "contract between consenting adults"? State marriage laws specifically void any attempts to apply contract law.

  • ||

    Actually state marriage laws specifically void attempts at contracts that aren't the ready-made one the state supplies. This contract was/is being denied to a whole class of people.

  • robc||

    Actually state marriage laws specifically void attempts at contracts that aren't the ready-made one the state supplies.

    If I cant negotiate terms, it aint a fucking contract.

    And, the state has changed the terms of said default "contract" ex-post-facto, which violates the whole concept of it being a contract.

  • ||

    Wouldn't your argument be just as easily used by people defending metadata snooping or blanket gps tracking? The framers had no conceptual bracket for these things so the constitution doesn't protect them?

  • John||

    Wouldn't your argument be just as easily used by people defending metadata snooping or blanket gps tracking? The framers had no conceptual bracket for these things so the constitution doesn't protect them?

    No. First the situation is different in that gay marriage is demanding the government give recognition to people and benefits to them. That is not the same as saying the "government doesn't have the power to do X". No one is saying the government can't recognize gay marriage. The issue is does it have to.

    Second, The framers had lots of conceptual background in that sort of stuff. Do you think government snooping is new? Elizabethan England was a police state complete with the government reading people's mail and citizens informing on each other. And the founders absolutely rejected that.

    You are asking me to believe they embraced and specifically intended to protect gay marriage, as opposed to polygamy, marriage of family and marriage of minors. Understand, even the gay marriage proponents don't want to create a right to every kind of marital arrangement. They just want to carve out a place for gays. The polygamists are not going to benefit from such a decision. So the decision would be "there is a right to gay marriage but not a generalized right to all forms of marriage. The states can still prohibit polygamy and other forms of marriage that are not yet popular enough with judges to warrant protection".

  • ||

    Besides the children marriage being a strawman (children can't enter into contracts without parental consent), there's no reason that polygamy or marriage of families should be outright outlawed.

  • Tony||

    John, specifically addressed is the fact that DOMA denied basic liberties to a certain class of people for no good reason. Denying rights to certain classes is allowable only under the strictest of scrutiny, and DOMA fails. There are quite arguably good reasons for states to deny marriage rights to family members, polygamists, and minors.

  • ||

    Tony:

    Denying rights to certain classes is allowable only under the strictest of scrutiny, and DOMA fails.

    But, isn't that arbitrary? What rights? How can the government limit itself from denying rights, when it defines rights? And, does marriage equal protection? If money isn't the same as speech, why does marriage equal protection? The law regulates people differently all the time. Why this special, arbitrary exception?

    There are quite arguably good reasons for states to deny marriage rights to family members, polygamists, and minors.

    What's wrong with polygamy?

  • Tony||

    The law does regulate people differently all the time, but according to the constitution it cannot regulate people differently based only on, e.g., race or sexual orientation.

    I don't think polygamy is relevant, but I say polygamists are welcome to their day in court. Arguments against it include the fact that it is almost universally an arrangement that subverts the rights of wives to the will of their husband.

  • JWatts||

    almost universally an arrangement that subverts the rights of wives to the will of their husband.

    That comment seems baseless. How does that mechanism even work? How does the "will" of the husband subvert the "rights" of the wives.

  • ||

    Tony:

    The law does regulate people differently all the time, but according to the constitution it cannot regulate people differently based only on, e.g., race or sexual orientation.

    Really? Where's the explicit exemption based on sexual orientation? And, the law applies equally to homosexuals and heterosexuals. Homosexuals can get married, just like heterosexuals. They just have to marry someone of the opposite sex, just like heterosexuals. This assumption that some marriage regulations are good, and others are bad, is just arbitrary, and telling the states that they cannot regulate it is a form of totalitarianism.

    Arguments against [polygamy] include the fact that it is almost universally an arrangement that subverts the rights of wives to the will of their husband.

    Really? So they outlawed polygamy in the 1800's to uphold the rights of women? And, why an assumption that we're talking about multiple wives and one husband?

    Saying that polygamists almost universally abuse their wives is like saying that gay scout masters and priests almost universally molest children. Not exactly open-minded tolerance, if you ask me.

  • ||

    Homosexuals are not a protected class. Strict Scrutiny does not apply.

  • ||

    I was partly being glib there, but the framers would've seen sodomy as sin, not a morally neutral trait. I have a problem with your argument that just because those who came before us saw it as a sin, and had a problem with it, that current society is locked in by that definition.

  • ||

    The better question is whether or not John thinking Loving v. Virginia was wrongly decided for all the same reasons he has listed.

  • LynchPin1477||

    You are asking me to believe they embraced and specifically intended to protect gay marriage

    Who cares what the founders intended? The beauty and justness of the Constitution doesn't derive from the people who wrote it or their intentions. It derives from its philosophy -- individual liberty and a limited government that protects the rights of the people and is answerable to them -- and the structure of government it created to exemplify and protect that philosophy. There have always been ways in which our government has failed to live up to the high ideals that undergird the Constitution. When liberty is expanded and government power is rolled back in order to correct those failures, it is a good thing.

  • ||

    government power is rolled back...

    ... by giving the government the authority to override voter referenda by legal inaction, and by granting the federal government more authority over states?

  • Major Pain||

    "The polygamists are not going to benefit from such a decision."

    Sure they will. It's just going to take time, just as same sex contracting did.

    In the meantime, contract-free polyamorous association is perfectly ok, and that's an excellent training ground for relationships that don't depend on outside pressures to keep them (apparently) stable.

    There are only two words that should govern relationships, contracted or not. Here they are:

    Informed consent.

    That's it. The whole shooting match. Everything else, EVERYTHING, is smoke and mirrors.

  • Arn0||

    "Yes, out of thin air. There wasn't even such a thing as "gay marriage" 40 years ago. And now you are telling me that it is protected by an Amendment passed in the 1860s?"

    If this amendment passed today would it have the same meaning as in 1868? Or should it be ratify every ten years for the update?

    To me "equal protection of the laws" is the same concept todays as it was one hundred and fifty years ago. The "framers" probably did not see all the logical consequences of their own law, but it doesn't change the full meaning of this amendment.

  • SugarFree||

    The right to keep and bear arms means you can only have a flint-lock musket.

  • Azathoth!!||

    There wasn't even such a thing as "gay marriage" 40 years ago.

    Well, no. There have been gay people who want to pairbond for far longer than 40 years. And some did, they just couldn't call it 'marriage'.

  • ||

    I haven't had a chance to read all the dissents thoroughly. I'll have to do so later.

    In any case my opinion is that section 3 of DOMA was unconstitutional on the merits and would have been eventually overturned even if they found no standing.

  • Locke||

    Right, which is why the First and Fourth amendment clearly don't apply to telephone calls and the internets, just as the 2nd amendment only applies to muskets. Now polish my boots, prole

  • John||

    Locke, that is probably the dumbest comment ever posted on here by someone not named shreek. Seriously, you are astoundingly fucking stupid if you think that saying the Constitution has meaning as written as opposed meaning whatever the current fashion says it does somehow means that the same thing as "it only applies to printing presses". That is embarrassing son. You have to do better than that.

    And if anyone is a prole here it is you. You are the one dying to be ruled by robed overlords not me.

  • Locke||

    I was being sarcastic

  • Locke||

    Basically I was rephrasing this: "Wouldn't your argument be just as easily used by people defending metadata snooping or blanket gps tracking? The framers had no conceptual bracket for these things so the constitution doesn't protect them?"

  • John||

    Sorry. My sarc meter is full on useless. My sincere apologies.

  • Locke||

    No worries

  • John||

    Damon,

    I hope you understand the horrible precedent the standing decision sets. Thanks to this case, any state government is free to invalidate any law it chooses to by simply refusing to defend it in court. The Prop 8 decision is one of the worst decisions in years. They actually managed to make a worse decision than deciding gay marriage is a right.

  • Andrew S.||

    And you too John. I know, you find it icky.

    That's exactly what state governments SHOULD do when a law is awful. Just like the feds were right in not defending DOMA.

  • Spokker||

    Did this decision effectively kill the referendum process? That's the the rumor swirling now.

  • Andrew S.||

    It effectively killed the referendum process about as much as yesterday's VRA decision means there are going to be poll taxes and "No Blacks Allowed" signs at voting booths.

    (i.e., it didn't)

  • Spokker||

    That sucks. Here in California we vote for low taxes but high spending on shit like California High Speed Rail.

    It's one or the other, not both.

  • ||

    Right, I mean, just because the states can now pocket veto any referendum they choose doesn't mean the referendum process is worthless or anything. I mean, you can still pass all the referendums you want as long as they are popular with the current state leadership and/or never get challenged in court. Yay liberty!

  • Acosmist||

    So you're a statist now.

  • John||

    That's exactly what state governments SHOULD do when a law is awful.

    And who decides what is Awful? I thought we had a democratic process for that. Basically what you are saying is that abusing the legal process to invalidate laws via sham suits is okay as long as your team does it.

    If the precedent applies to this law, it applies to any law. It doesn't say "you don't have standing as long as the law is really icky".

  • Sevo||

    "And who decides what is Awful? I thought we had a democratic process for that."
    No, we specifically have a republic to protect us from the tyranny of the majority:
    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;..."

  • John||

    Can you stop begging the fucking question Sevo. You think Prop 8 is unconstitutional. Good for you. But that is not the debate here. The debate is does a state have a right to short circuit federal court oversight on Constitutional issues by simply refusing to defend a law.

    If you have an opinion on that question, I would like to hear it. But answering that question with "but this result is good" is fucking retarded. That is Tony level retarded.

  • Sevo||

    Asshole, you asked: "And who decides what is Awful? I thought we had a democratic process for that." And I answered.
    Go move the goal posts on someone else. I'm tired of listening to your whining about icky gays.

  • John||

    I am not moving the goal posts. This is a terrible decision. It is a terrible decision because of the precedent it sets. The desirability of gay marriage has nothing to do with it.

    This is so pathetic and disappointing. What is supposed to make Libertarians are supposed to be smarter and better than your typical liberal and conservative because they understand that just because you like result of something personally doesn't mean it is a good idea. So much for that myth. All the fuck you clowns care about is getting your culture war pony. Apparently there is no means that is not acceptable and to be applauded as long as Libertarians get their pony. That is fucking sad.

  • ||

    John, I read somewhere else today that the prop 8 ruling would not prevent regular citizens from bringing suit if they made a case that their friggin' rights were being violated by a bunch of fargin' iceholes. It was only because the petitioners who backed prop 8 after the CA state government refused to do so had not had any of their friggin' rights violated that they were judged to not have standing to bring suit.

    My suspicion is SCOTUS was looking for a way to avoid incorporating gay marriage rights to the states under the 14th amendment.

  • John Galt||

    The idea behind our constitutional republic was to protect us from both tyrannies of the majorities and the minorities.

    But, then who actually gives a damn about the Constitution these days. Everyone has their special interest that trumps all. And the Machiavellian approach of divide and conquer prevails well in a culture richly diverse in primarily single issue thinkers.

  • Azathoth!!||

    When people prattle on about 'being protected from the tyranny of the majority' they always seem to fail to see that it is the tyranny of the minority that is the problem. Why, it's the problem that had us sending a parchment to King George.

    Protections from the 'tyranny of the majority' are things that forestall our descent into the bread and circuses death spiral that plagues democracies(of whatever type), not an injunction to allow the minority to run roughshod over the minority--because that puts us right back where we were with ol' George.

  • Numeromancer||


    That's exactly what state governments SHOULD do when a law is awful one that I don't like.

    FTFY

  • Eduard van Haalen||

    Only elected officials are authorized to defend the constitutionality of measures passed by initiative. Of course, the initiative process is designed to bypass these same elected officials, but now they, with the cooperation of any sympathetic district judge, get a veto over any law the plebes presume to enact over the objection of their betters.

  • ||

    The referendum process is still bound by the constitution.
    Just because it's popular, doesn't make it right.
    The tyranny of the majority is still a tyranny that we shouldn't abide.
    If you don't like gay marriage, don't marry a dude.

    Hmmm... how many other one liners can I throw out here to point out the idiocy of mob rule?

  • Acosmist||

    Cool, so SCOTUS ruled on the merits? Where? Must be a different opinion.

    I can't wait until this happens with medical marijuana. Cannot wait. Colorado won't go to bat for it and the tears here will be DELICIOUS.

  • ||

    Nope,wasn't speaking to the ruling, just to the lament of the imagined ability of the ruling class to bypass the will of a tyrannical, oppressive majority with the use of the court.

  • ||

    Tell me more about how the MJ legalization case is going to be challenged in court.

    Oh is the Obama administration going to do this? Can't wait for that!

  • ||

    Just wait till 2017. Whichever retarded ass Republican gets elected will go after it then.

  • ||

    By 2017 there might be 5 or 6 states with legal MJ, and also given the likely successes experienced there will be more pressure in CO pols to defend the law.

  • ||

    God willing.

  • Major Pain||

    Sorry, but Hillary Clinton isn't a republican, and she is *definitely* going to be the next president. And the tears of the fundies and right wingers will pool into a common reflection of their inability to learn.

  • Auric Demonocles||

    The referendum process is still bound by the constitution.

    Regardless of whether Prop 8 should have been ruled constitutional, it should have been allowed to be defended.

  • Andrew S.||

    I actually agree with that, but based on stare decisis, this was right. As the majority said, they've never allowed a private actor to have standing to defend a law, and they didn't do it here either.

  • robc||

    Wasnt Prop 8 an amendment, not a law?

  • ||

    They've also never allowed that.

  • John||

    The referendum process is still bound by the constitution.

    And there has never been a final decision on if this law is constutional or not. That is the whole point. We never will have one because the state refuses to have one. They just got one judge to agree with them and then stopped the process. Moreover, they don't even need that. All they need to is not show up and the judge will be forced to enter summary judgement and invalidate the law.

    You think this law is unconstitutional. Good for you. But thanks to this case, it won't matter if the next law is Constitutional or not, since the state can just avoid the whole issue by refusing to defend it in court.

  • Tony||

    So should the state not have the right to refuse to defend a law?

    Maybe this is a sign that the California referendum process is stupid, which it is.

  • John||

    So should the state not have the right to refuse to defend a law?

    No. The AG has a duty to defend the laws as written. It is not the AG's job or authority to decide which laws really deserve enforcement and which do not. That is the job of the legislature.

    Maybe this is a sign that the California referendum process is stupid, which it is.

    Yes Tony, you think that any result that you like is good no matter what means or precedent it sets. But that is because you are fascist who doesn't understand the rule of law much less support it.

    I in contrast believe in the rule of law. Therefore the merits of the law in question are irrelevant to me. It is the principle the decision is affirming that matters.

  • Tony||

    It is not clear that attorneys general do have a duty to defend all laws in court, though the executive perhaps does have a duty to enforce the laws but see below). (E.g., the Obama administration continued to enforce DOMA even though it declined to defend it in court.)

    I don't know what the California constitution says, but this is an ongoing question with respect to the federal executive. The president has a duty to faithfully execute the law, but the constitution is law too, and it precedes congressional statutes. So what happens when the executive determines that a law is unconstitutional?

    At any rate this isn't about enforcement, but defending in court--and there is some precedent to executives being able to assert a sort of prosecutorial discretion. The constitution does not require defense of laws, and some argue that it does not require enforcement of laws the executive, after careful consideration, considers unconstitutional.

  • Fluffy||

    Tony, consider the following scenario:

    I have been elected President.

    I appoint John my AG.

    Giggling like schoolgirls, we get robc to file a suit claiming that the Civil Rights Act and the Americans with Disabilities Act are unconstitutional.

    Then John refuses to defend the laws in court.

    Does robc deserve to win by summary judgment?

  • ||

    Well duh, the answer is obviously no because those are GOOD laws.

  • Tony||

    We have much bigger problems on our hand if you are elected president.

    The guideline is that the president should presume constitutionality of laws passed by Congress, and decline to defend (or enforce) only when a provision appears clearly unconstitutional. The president should continue to enforce if he believes the supreme court will uphold constitutionality, but if he believes the court will declare the provision unconstitutional, he has the authority to refuse to enforce it.

    Most relevant cases have had to do with executive authority, so the DOMA case is a bit of a new thing. The guidelines above are certainly not universally agreed upon.

  • Fluffy||

    So your answer is yes, robc deserves to win by summary judgment.

    Great, thanks.

  • Fluffy||

    And you're right - you would have bigger problems on your hands, because the technique described above could be applied to each and every area of federal law I don't like.

    I would just need a litigant for every agency issuing regulations. Poof, buh-bye.

  • robc||

    I would just need a litigant for every agency issuing regulations.

    Im available for those cases too.

  • robc||

    Does robc deserve to win by summary judgment?

    Yes, because:

    1. Im that awesome

    B. They are unconstitutional.

  • Fluffy||

    Can you imagine the epic salty ham tears on the day of your mighty victory?

    Man, we would have to take the day off and kick back to do nothing but read Twitter.

    I'd issue an Executive Order naming it National Butthurt Day.

  • robc||

    Can you imagine the epic salty ham tears on the day of your mighty victory?

    I would consider voting for you just for that day.

  • sarcasmic||

    Maybe this is a sign that the California referendum process is stupid, which it is.

    Democracy! The will of the People! Except when I don't like it!

  • Tony||

    How the tables have turned. In general I do not support legislation-by-referendum. You're propping up the straw man, once again, that supposedly I support direct democracy. I do not.

  • sarcasmic||

    Well, Tony, given your history of dishonesty and arguing in bad faith, I suspect that you would totally support referendums if you liked the results. Like in Maine where they used referendum to pass gay marriage.

  • Fluffy||

    The problem with your lack of support for direct democracy is that it contradicts your previous statements of support for democracy.

    You need to establish the limiting principles that make Democracy good, but "direct democracy" bad.

    You tried to define one recently: that democracy cannot justify the introduction of laws that would inhibit the future exercise of democracy. And that limiting principle would justify restricting democracy's ability to limit the political speech or activity of individuals participating in the democracy. It's of absolutely no use here, though, since gay marriage has nothing to do with issues of democratic process participation. So what's the limiting principle here?

    Quick, make something up!

  • Tony||

    It's two separate issues. One is whether majority rules should be the norm for most routine legislative matters (or votes on a court panel, for that matter--Scalia does not get his way just because he asserts some natural rights bullshit, he has to win over a majority). This is obviously the case, because there is no non-tyrannical alternative. On any routine matter, majority rules is simply the only fair way to make decisions. As you point out, exceptions to this must include matters that would undermine democracy itself. If a majority can vote away the basic democratic rights of a minority, then we don't have democracy anymore.

    The second issue is whether it's more prudent to have issues decided by direct democracy (referendum) or by elected legislatures. The latter is preferable because legislators are "specialists," and average citizens can only be expected to be attentive enough to vote for representatives--who, with any luck, possess some amount of wisdom. Citizens have lives to live and can't be expected to do all the work of governing themselves, and the other virtue of representative democracy is that the judgment of wise representatives can prevail even against the current will of the people.

    There are critics of representative democracy as a stepping stone to oligarchy, but if nothing else California exhibits the pitfalls of direct democracy.

  • Fluffy||

    Your first two paragraphs clearly and blatantly contradict each other.

    If the latter paragraph is true, the former paragraph cannot be true.

    Your second paragraph openly states that citizens can't be expected to have the expertise to make governing decisions. But if that's true, then majority rule is foolish and without basis.

    If your second paragraph is true, there would be nothing wrong with tyranny. So saying "Well, we have to use majority rule, because there's no non-tyrannical alternative" would contradict your second paragraph. If citizens are not competent to make governing decisions, which have to be left to "specialists", then all tyrants need to do is claim to be specialists.

  • Tony||

    No they need to get elected and elections need to occur at some frequency. The people's role is to elect representatives, by majority vote, then representatives legislate, by majority vote (except on certain protected civil rights issues).

    I do not often encounter defenses of direct democracy here, what I encounter is incessant whining when even representative democracy doesn't always turn out your way, the implied argument being that you should get your way because you say so--or tyranny.

    My arguments do not contradict. In a nutshell: majority rules is the fairest way to make collective decisions, presuming everyone has basic rights intact. And representative democracy has virtues over direct democracy, which include the ability of legislators to supplant the whims of majorities with wise judgment from time to time.

  • Tony||

    If John were correct in his accusation that I favor whatever process gets my preferred outcome, then I'd say I favor national referendum on gay marriage and a host of other issues on which the current Congress is defying the will of the country's people.

  • Fluffy||

    Again, your response is incoherent.

    If the only basis for declaring an outcome fair is that it reflects the will of the majority, then there can be no valid basis for wanting legislators to supplant the will of the majority "from time to time" or at any time.

    The only way there could be such a thing as "wise judgment" that supplanted the will of the majority would be if there were some standard of value that stood outside of the will of the majority and that was superior to it.

    Without that, you could never - ever - have a valid basis for declaring defying the majority "wise" or "prudent" or anything else. The majority's will would establish wisdom and prudence and every other value, because that will would be the basis for all value.

  • Tony||

    One of the two principal virtues of representative democracy that I described is that legislators can overrule the current whim of a majority of citizens with wisdom and prudence. But legislators still have to enact their will via majority vote, and are still accountable for their judgments to the people.

    Normal citizens don't play the role of legislators, they play the role of voters in the elections of legislators. There again majority rules is required. If they don't like what legislators are doing, they are free to vote them out. Again, two separate concepts. The virtues of majority rules in collective decision-making (which should be patently obvious), and the virtues of representative democracy.

  • Fluffy||

    No, its virtues are not obvious.

    I don't even think they're clear in your mind.

    "Majority rules" can be a good way to go about collective decision-making for one of two reasons. (These two reasons subsume every other possibility within themselves.)

    1. Although the Good exists, it is often in dispute. The idea of the Good held by many people is more likely to be the actual Good than that held by just a few people.

    2. There is no Good until the majority declares what it feels to be the Good. Once the majority makes its will evident, that will creates the Good and anyone who defies it is wrong.

    These are two dramatically opposed ways of supporting democracy as a model. If you choose the latter justification, then there can be no argument for representative democracy being better than direct democracy. Because direct democracy more immediately reflects the will of the majority, it is better than representative democracy by definition.

    But if you choose the first option, the natural libertarian response to that would be to say that in our set of cases, the Good is actually not in dispute, and since we're already sure, using democracy as a method has no purpose.

  • Tony||

    Minorities are not "wrong" with respect to a capital-G Good, they simply lost a vote. The only reason majority rule is preferred is because minority rule is clearly worse. When the few can impose its will on the many, we have tyranny, and it's completely unclear how we decide who gets to constitute the few. Majority rule is simply the way collective decisions get made, if you're a group of 10 people or 10 million. Representative democracy is simply the practical application of an intermediate step in this process when we're dealing with large populations of people who can't be expected to take time out of their lives for every renaming of a post office.

  • sarcasmic||

    The latter is preferable because legislators are "specialists," and average citizens can only be expected to be attentive enough to vote for representatives--who, with any luck, possess some amount of wisdom.

    Haaaaaaaaaaaa ha ha ha ha ha ha!

    Seriously?

    According to these writers, it is indeed fortunate that Heaven has bestowed upon certain men — governors and legislators — the exact opposite inclinations, not only for their own sake but also for the sake of the rest of the world! While mankind tends toward evil, the legislators yearn for good; while mankind advances toward darkness, the legislators aspire for enlightenment; while mankind is drawn toward vice, the legislators are attracted toward virtue. Since they have decided that this is the true state of affairs, they then demand the use of force in order to substitute their own inclinations for those of the human race.

    -Bastiat
  • ||

    The thing with the laws being defended at the Federal level is that DOMA showed that they have no problem having the legislature defending the law.

    So in order to go about the process you've described, you'd have to be in possession of both houses of Congress and the WH.

  • Tony||

    Bastiat advocated a specific type of government that he believed was the perfect system.

    Every single free society has rejected his system in favor of something else.

    What's fair and right? For Bastiat's system to be imposed on the free citizens of the world against their will?

  • sarcasmic||

    You can't impose liberty on free citizens, Tony. Liberty is a lack of imposition.

    Liberty imposes limitations on people with power, not upon free citizens.

  • Tony||

    But imposing a laissez-faire economic system is not necessarily the same thing as engendering liberty for everyone. That's you giving yourself unearned bonus points for your political preferences. I think my favored economic system increases liberty, and laissez-faire is hugely restrictive on liberty compared to alternatives.

  • Fluffy||

    If liberty is a lack of imposition, then whatever state of affairs obtains in the absence of imposition is liberty.

    You're arguing that liberty is something other than a lack of imposition.

    And hey, that might be true. But that's different from saying that sarcasmic is giving himself bonus points for his own political preferences.

  • Tony||

    I'm not necessarily arguing that liberty is something other than a lack of imposition. I'm saying a laissez-faire economics system can be imposed like any other. It is a specific regime that happens to be very unpopular, so you have to advocate for it on its merits and not say it is required for people to be free.

    My preferred economic regime, I feel, removes far more impositions than a laissez-faire one does. I simply count among impositions things like the whims of nature and parentage, and the inevitable abuses by private actors that occur in laissez-faire systems. Requiring society to accept child labor as a reality is an imposition.

  • sarcasmic||

    All laissez-faire means is economic liberty. It means free citizens are free to engage in voluntary transactions between willing parties without asking permission or taking orders from people with power.

    It is an imposition upon people with power, but not upon free citizens.

  • Tony||

    No it doesn't mean "economic liberty." It means a specific regime in which government does not meddle in the marketplace. I think certain important liberties can only be realized by government meddling in the economy in certain ways.

  • sarcasmic||

    It means a specific regime in which government does not meddle in the marketplace.

    Premise: liberty is a lack of imposition
    Premise: government meddling is an imposition
    Premise: laissez-faire is a specific regime in which government does not meddle in the marketplace

    Conclusion: laissez-faire is economic liberty!

  • Numeromancer||

    Tony: “Stomp on my face.”

    Governor: “No.”

    Tony: “Oppressor!!!”

  • sarcasmic||

    I think certain important liberties can only be realized by government meddling in the economy in certain ways.

    Liberty, as in a lack of imposition, can only be achieved by imposition?

    Doublethink much?

  • Tony||

    No, the flaw in thinking is yours, that the only thing that constitutes an imposition is government levying taxes or making regulations.

    Nature, other people, and the realities of the market itself can also impose.

  • sarcasmic||

    No, the flaw in thinking is yours, that the only thing that constitutes an imposition is government levying taxes or making regulations.

    Uh, well, that's because we're talking about liberty in the context of free citizens being free from government impositions. Duh. You do know what "context" means, don't you?

    Nature, other people, and the realities of the market itself can also impose.

    Goalposts say WHOOSH!

  • ||

    Tony:

    majority rules is the fairest way to make collective decisions, presuming everyone has basic rights intact.

    Tony:

    I'm saying a laissez-faire economics system can be imposed like any other.

    You keep talking as if you believe in rights that aren't fabricated by government. But, this cannot be the case, because you reject that notion. This implies that, if laissez-faire economics are "imposed" on someone, then it's not a violation of rights. It's just a "redefinition" of rights.

    Requiring society to accept child labor as a reality is an imposition.

    Child labor laws in this country were solidified during the great depression. Adults didn't like competing with children for child wages. It was more about reducing competition in the labor market than about caring for children. It's not like we gave kids summers off from school so they could explore the world on their own.

  • ||

    You can think that all you want, you'll still be wrong.

    Also, way to move the goal posts from system of government to system of economics.

  • ||

    "Imposing" a laissez-faire system is nothing like how you impose your preferred method: via theft.

  • Locke||

    Just how in the fuck do you impose non-interventionism? It's like imposing "not being robbed" or "not being murdered".

    The very meaning of laissez-faire is "let it be"- how you can be imposed into a system that's not even a system is lost on me. You can do what you want with laissez-faire. If you want to participate in capitalism, that's fine. If you want to join a commune, then go for it. No one is holding a gun to your head telling you to buy McDonalds and bank with Chase.... which Socialism actually does.

  • sarcasmic||

    Just how in the fuck do you impose non-interventionism? It's like imposing "not being robbed" or "not being murdered".

    Tony believes that inaction is action, that no taking is giving, and that not giving is taking.

    So I suppose he also believes that not forcing you to do something is in fact forcing you to do something.

    Or something.

  • walkthejosh||

    It's not hard to see where Tony is coming from. The state and well-connected business interests have spent a long time indoctrinating us to believe that we live under system of "free enterprise." We're taught that those centrally planned economies of the old USSR, South Asia, and Cuba are bad, but we pretty much have a quasi-centrally planned economy with just enough quasi-market elements sprinkled in to make it believable.

    The real problem I see with this is that the conventional Left and Right believe the propaganda. The Left believes we have an actual free market arrangement, is horrified by the outcomes, and thinks that a more intrusive state is the only solution. The Right, on the other hand, believes we have a free market for the most part, thinks that the outcomes are pretty much the way they should be, and only seeks to tinker with periphery regulations.

    Both sides seem oblivious to the fact that the state is the foundation for huge swaths of our economy. The Left wants the government to regulate the banks more, while the Right says they're that way because that's just the way the "free" market works. Both sides ignore the fact that the banking system is a state-enforced cartel.

  • ||

    John, they had standing in California under state law. So if you want your referendum process to be safe you just have that as a state law. The court just said that they didn't have standing under federal law so it reverts back to the Calif Supreme decision.

    I think you are over stating this.

  • John||

    The court just said that they didn't have standing under federal law so it reverts back to the Calif Supreme decision.

    That just means California has really lose standing laws. Good for them, but that is hardly uniform. And regardless, the federal courts have final say over federal constitutional issues. So the "you still have state court" dog doesn't really hunt. At best, we are left with "you can have federal courts decide federal issues so long as the governor and the AG grant you permission to get such".

  • ||

    It is their state referendum system, if you believe these are state level decisions then how they decide standing is the be all and end all. I frankly couldn't care how they do their referendums because I don't live there.

  • John||

    The referendum is irrelevant. It doesn't matter that the law was passed by referendum. It could have been passed by a previous hostile legislature and the Governor would still be able to do the same thing. See fluffy's example above with the CRA.

    Stop obsessing about gay marriage and the fact that this was a referendum. None of that matters. Just think of it as "law X" and think about the precedent this sets.

  • ||

    I'm not talking about gay marriage, I'm looking at it from a federalist point of view. California sets up their own referendum system, they decide how standing works either through the legislature or court system and then their court system rules on the referendum according to those rules. Insert legislation and it makes no difference. I don't care how they do it there because I don't live there.

  • John||

    But California's rules about standing in their courts do not and should not apply to federal courts. The issue here is federal standing. And as a result of this decision, you no matter where you live, now only have a right to have federal courts review the constitutionality of the laws in your state if the governor decides said laws are worthy of defending. So if you like a law and the governor doesn't, tough fucking shit. The governor now can invalidate that law by having one of his cronies file suit and then refusing to defend it.

    That is the fallout from this case.

  • Tony||

    Prop. 8 could have been found constitutional at the district court level and that decision would stand. The SC was being conservative here in not establishing a new precedent out of thin air that private parties can defend a law on behalf of a state that refuses to.

  • johnl||

    Jerry Brown might not like Prop 13. So now he can get rid of it if he can shop a case to a district court. Because nobody would have standing to defend it. Every state's proposition process was just destroyed and in exchange we got gay marriage. What a deal.

  • Tony||

    From the Perry opinion:

    "The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law." [emphasis added]

    According to the court, the proponents of the law (acting in place of the state) did not have standing at the federal level, because the constitution (they said) requires federal cases to deal with actual "cases" and "controversies." This court has long been conservative with respect to granting standing.

    Think of the outcome if they had gone the other way: they would have invented a new standard that says anyone can defend a law even if they don't have a specific stake in it.

  • Auric Demonocles||

    Think of the outcome if they had gone the other way: they would have invented a new standard that says anyone can defend a law even if they don't have a specific stake in it.

    Why would this even be bad?

  • Tony||

    It's not clear to me that it would be bad, but this court obviously thinks standing in federal courts is narrowly defined in the constitution. I was suggesting it would be bad from John's point of view in that he presumably opposes the judiciary inventing new standards willy-nilly.

    If he's correct that I only care about the short-term outcome, I should have wanted them to grant standing and then rule on the merits (in my favor of course).

  • Zenjuris||

    I think John is overlooking that the decision confirms an asymmetrical standing doctrine that ultimately favors individual liberty. The fact that private parties do not have standing in federal court to defend a law on behalf of a state does not mean that private parties aggrieved by the law do not have standing in federal court to challenge that law. If you believe (as I think most libertarians do) that laws generally tend to restrict individual liberty freedom rather than broaden them, then a standing regime that does not force a state to defend all laws from challenge advances libertarian principles.

  • Locke||

    After reading the comments I think John has some good points, but he is indeed overstating

  • Tony||

    Scalia was not so bothered by judicial overreach with respect to the other branches of government yesterday.

  • Eduard van Haalen||

    Dear God, dare I ask what this means?

  • Tony||

    He was fine with striking down the near-unanimous will of Congress on the Voting Rights Act, but today is upset that the Court is overruling a law of Congress because something something gays are icky.

  • Spokker||

    Gay sex is icky to me but it's none of my business. It's not like there will be gay anal flowing through the streets and into my eyeballs.

  • ||

    Methinks he doth protest too much...

    you know your eyeballs want it.

  • Spokker||

    Fuck my ass and lower my taxes.

  • Eduard van Haalen||

    I bet the govt will grant half of your request - no prizes for guessing which half.

  • stoneymonster||

    How does another branch of government engage in judicial overreach pray tell?

  • Tony||

    Sorry, judicial overreach of the judiciary, meaning improperly going against the will of the other branches and the states.

    Scalia thinks that there is no constitutional basis for denying states the right to regulate marriage (or sex--he actually says that) any way they want to.

    I guess he is somewhat consistent on federalism grounds, but he should leave judicial overreach out of it in light of his absolute willingness to "legislate from the bench" in other matters.

  • sarcasmic||

    States don't have rights. They have powers.

    Not that I would expect your feeble brain to understand the distinction between powers and rights.

  • Tony||

    So the concept of states' rights is invalid?

  • sarcasmic||

    The concept is separation of powers.

  • Tony||

    A state can have a right to execute a power. This is semantics, again--you're not making any substantive argument.

  • sarcasmic||

    A state can have a right power to execute a power.

    Rights are not powers, and powers are not rights.
    Governments have powers, and individuals have rights.

    But we all know you're not big on distinctions.

  • Tony||

    Right: n. a moral or legal entitlement to have or obtain something or to act in a certain way.

  • ||

    So Scalia must hate the gays for punting on Prop 8, but I'm sure the 3 liberal justices (who also made the same ruling) don't have the same feelings.

    Good god, you're the worst.

  • ||

    He really is.

  • chexsystem||

    I never believed that it was feasible to accomplish something like that until after I looked over your post.

  • Andrew S.||

    Gary Johnson on Twitter:

    Gov. Gary Johnson ‏@GovGaryJohnson 8m
    #SCOTUS decision on #DOMA is simply fair & gets the govt out of the discrimination business. Game On in the states. #MarriageEquality #tlot

  • Ken Shultz||

    One of the other things that somebody should mention...

    It looks like the State of California is so obsessed with being politically correct, that they're effectively willing to work against the interests of gay rights in order to seem politically correct.

    If the State of California had backed the case against Prop 8, it would have been the greatest victory for gay rights in American history.

    But they refused to defend Prop 8 before the Supreme Court our of pure political considerations--and if they had, gay marriage would be the law of the land nationally.

    If the ruling had gone against them, that would have been bad for them politically, I guess, but that's always a risk with test cases. Does the ACLU ever say, "We don't want to bring a test case to the Supreme Court because they might rule against us"?

  • RightNut||

    It would be a stretch to find prop 8 unconstitutional I think.

  • John||

    Does the ACLU ever say, "We don't want to bring a test case to the Supreme Court because they might rule against us"?

    Yes they do. And governments do that sort of thing all of the time. They live with summary judgements they don't like for fear they will get an appellate opinion tat is binding on other courts.

  • Ken Shultz||

    Point remains that if they had backed Prop 8 to the Supreme Court, it would have been a huge victory for gay rights.

    If they did that calculation, they came up with the wrong answer.

    And there's no way they sat down and thought about it that way, anyway. They had just run against Prop 8 as being the most evil thing imaginable, and once they've staked out a politically correct position like that, they won't abandon it--even if fighting FOR Prop 8 would have been a huge victory for gay rights.

    They cut off their nose to spite their face.

  • Eduard van Haalen||

    SSM backers can heave a sigh of relief- the USSC is setting up a decision in your favor down the line.

    Remember how in [the 1960s Justice Harlan assured us that the "right to privacy" wouldn't entail a right to sodomy? Then in 2003, when the Supreme Court pronounced just such a right, they said it wouldn't necessarily entail a right to gay marriage? And now, ten years later, when saying that Congress had an irrational animus which made its law against SSM unconstitutinal, the Court assures us that this doesn't mean the states have to recognize SSM?

    All these assurances were simply to fool the rubes and get them off their guard. We see the direction in which the Court is moving.

  • ||

    And that direction is more freedom, so...yay.

  • John||

    And giving the court the power to use the Constitution to give you whatever "freedoms" they decide are fashionable? What could possibly go wrong.

    Basically what you are saying Tim is that you are okay with the court giving up on any idea that the Constitution might have a meaning outside of current fashion in the judiciary is just great with you as long as you get a result you like.

    Don't you understand that the results are not always going to be the way you like and that by allowing the court to act arbitrarily you are placing yourself at their mercy? What happens when society and the court are not so interested in freedom? Or when they decide something like "freedom from religious propaganda" or "freedom from economic oppression" are the new freedoms your getting?

  • Tony||

    Current fashion will always play a role in jurisprudence and always has. It is an inherent part of the role of interpreting law. If the constitution were absolutely indisputably clear on all these matters, no interpretation would be necessary.

  • Eduard van Haalen||

    All the more reason to ditch all restraints against arbitrary interpretations of the law - helping pave the way for the influence of current fashion!

    As Tony is presumably aware, the latest "current fashion" in gay liberation is for the law to treat private businesses who discriminate against same-sex couples the same way the law treats businesses who discriminate against opposite-race couples.

    The Supremes have already gotten on board with this with their Romer decision in 1996, stripping away the protections which Colorado voters chose to give to private businesses.

  • John||

    And in the future when the fashion changes, that precedent could never be used against something Tony doesn't like. It could never be the case that say the rights of Muslims to be free from homosexual influences could trump his right to do what he wants in public. That could never happen. His group will always be fashionable.

  • Tony||

    There are certain risks to living in a free society. They are generally considered acceptable compared to the risks in living in a tyrannical society.

    Yeah we're a democracy and the constitution is imperfect. Some day the supreme court could declare something like that (indeed it decides things I don't like all the time). What alternative are you proposing exactly?

  • Tman||

    So I guess no one read the dissent yet. The dissent is interesting not because Scalia or Thomas are "bigots" but because the lower courts granted Windsor her victory and "so cured her injury". Dissent was wondering why SCOTUS was addressing the issue at all. Scalia wrote ""True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” That's not the job of SCOTUS, according to the dissent. "In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become ‘the province and duty of the judicial department to say what the law is.’"" Be careful celebrating this victory as it is not a power designed for the courts and can easily be used the wrong way.

  • Eduard van Haalen||

    A most excellent point - but Scalia went overboard is disrespecting the state of California and its decision to allow an initative's sponsors to defend the initiative in court if elected officials refuse to do so.

    Scalia was so focused on limiting federal courts' power that he disregarded California's perfectly legitimate decision to let Prop 8's sponsors defend their measure in court.

  • Tman||

    I disagree. Scalia was saying that this is not a case in which the Justices are required to resolve the constitutional rights of the aggrieved in question. Those rights had already been resolved by the lower courts.

    Scalia (and Thomas and Sotomayor) were arguing that this is not what the court is designed to do, and it sets a terrible precedent.

    Whole decision here. http://www.supremecourt.gov/op.....7_g2bh.pdf

  • Eduard van Haalen||

    Thomas and Sotomayor dissented in the Prop 8 case, based on their view that the state of California had legitimately designated the initiative sponsors as the state's representatives in the absence of the AG and governor.

    http://www.supremecourt.gov/op.....4_8ok0.pdf

  • Tman||

    Yeah again, the point being that SCOTUS has a very specific job, and "declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of the Court it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become ‘the province and duty of the judicial department to say what the law is."

    Seems like they fucked up to me.

  • ||

    If their job isn't to figure out what laws mesh with the Constitution, what the fuck are they good for?

  • Tman||

    Scalia from the dissent-

    "Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. "

    This is NOT what the SCOTUS was asked to do in this case.

    I also like this footnote-

    "There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’s abandoning the law in the present case. The majority opinion makes a point of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy. "

  • ||

    There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’s abandoning the law in the present case.

    I thought they declined to defend it on the grounds that administrative departments had started granting same sex couples partner benefits akin to marriage benefits. Wouldn't that have been an exercise in executive power which was prohibited by this section of DOMA?

  • robc||

    California's perfectly legitimate decision to let Prop 8's sponsors defend their measure in court.

    They can in CA state courts. His ruling doesnt change that at all.

  • Eduard van Haalen||

    Yet, as the dissenters argued quite persuasively, the federal courts can't second-guess California's choice of representatives to defends its own laws - and California designated the petition sponsors in this particular situation.

  • ||

    The government has no right to decide what I do in my bedroom. Be that clean my hoard of guns or bugger my wife.

    I absolutely have the right to engage in any sexual act that me and my partner agree upon. Recognizing that I have that right is not "raping the constitution" and it's not "making up rights out of thin air".

  • John||

    The government has no right to decide what I do in my bedroom. Be that clean my hoard of guns or bugger my wife.

    I completely agree. And if this case involved a law that made such acts criminal, you would have a point. But that is not what is happening here.

    You have a right to do whatever you like in your bedroom. But you do not have a right to demand that the government give your activity official recognition.

    If you really think "I am free to do this" means "the government must give me goodies for doing it", you need to become a liberal designate.

  • ||

    I completely agree. And if this case involved a law that made such acts criminal, you would have a point. But that is not what is happening here.

    You need to pay better attention to the comment threading. He's referring to a comment where EvH was complaining about Lawrence v. Texas being a result of Griswold

  • Eduard van Haalen||

    If it's OK to lie to social conservatives to achieve your objectives, then why isn't it legitimate to lie to libertarians? If it's OK to give assurances that the newly-constituted right to privacy doesn't include sodomy, only to go back on those assurances when convenient, why isn't it OK to soothe libertarians by saying that they're only seeking the right of gay people to be free from legal harassment, only to shift gears later and demand, as a constitutional principle, that gay people should be able to sue "discriminatory" businesses?

  • ||

    I'm sorry, but what business is it of yours or the governments whether or not I practice sodomy? What's that, it isn't? Then shut the fuck up.

  • Eduard van Haalen||

    "I'm sorry, but what business is it of yours or the governments whether or not I practice sodomy?"

    You're trying to relitigate the Lawrence decision from 2003, where the Court said that by affirming the right to private consensual sodomy, it was not taking a position on whether the government should recognize same-sex relationships.

    Taking the court at its word, I would have supposed that there's no connection between legalizing consensual adult sodomy, on the one hand, and giving equal status to same-sex relationships, on the other hand.

  • ||

    But Lawrence didn't take a position on ssm recognition and the court that decided that is not the same court that sits on the bench today (nevermind that they didn't explicitly recognize gay marriage). I'm confused as to where the lying comes in.

    We all have the right to be secure in ourselves and our papers (privacy). The logical extension of that is the gov doesn't have the power to legislate bedroom activities.

    We should all have equal standing before the fedgov so it stands to reason (drink)that it has no business recognizing some marriages but not others (hence why they should get out of it, at least as much as we can get them out of it).

  • ||

    Some libertarians support gay marriage because they see it as an equal protection issue. They're willing to work with gay rights activists to achieve that goal. Those same libertarians will turn around and fight to stop non-discrimination ordinances. Libertarian SSM supporters aren't useful idiots on gay marriage regardless of how desperately you want to make that the issue. They legitimately support gay couples having equal standing to straight couples, and don't support them using force of law against private businesses. It's tiresome that you keep banging this drum and expecting support.

  • ||

    ^THIS^

  • Eduard van Haalen||

    "Those same libertarians will turn around and fight to stop non-discrimination ordinances."

    Well, now is the time to do it, now that state legislatures have specifically rejected exemptions for private for-profit businesses. Now is the time to manifest your sincere, deep-rooted support for entrepreneurial freedom. Now is the time to explain to your progressive allies, who plainly disagree with you on this point, that the right to run one's own business and choose one's own customers and employees, and set one's own policies about employee benefits, is just as important to you as the right to engage in consensual adult sodomy in private. Now is the time - if not now, when?

  • ||

    I like your assumption that we AREN'T doing that EvH. You just assume that my friends don't think I'm batty for thinking bakers should be allowed to accept and reject business as they see fit, or that I haven't had otherwise very pleasant dates go sour when I point out that allowing the government that much power over people's personal lives is just transferring the same abusive bullshit we've fought against to a different group. But thank you for exhorting me to something I ALREADY DO.

  • Eduard van Haalen||

    "But thank you for exhorting me to something I ALREADY DO."

    I beg your pardon - obviously, my critique clearly doesn't apply to you. I was focusing more on the comments on H&R, but sure, if you're defending liberty on other forums, more power to you!

  • ||

    I was focusing more on the comments on H&R

    I don't know what H&R you're reading but I've never seen anyone (excluding maybe PB or Tony) champion non-descim ordinances. The argument is always about whether you can separate non-descrim law from marriage law. We can of course disagree on that, but you're implying that people at Reason support the use of the state to force private businesses to do something they do not want to do, which is clownish of you.

  • Eduard van Haalen||

    My assumption is that Reason and the commenters keep supporting these SSM bills at the state level, even after the various state legislatures *speciically reject* all but the most limited religious-freedom language. In fact, the legislatures specifically vote to grant exemptions to religious but not secular intitutions, which under other circumstances sets off all the libertarian alarm bells ("OMG special exemptions for sky-fairy believers!").

    If you applaud the passage of these statutes, you approve of the rejection of broad exemptions.

    It's as if a bunch of states were to pass laws saying that the state shall not promote sodomy, while specifically rejecting amendments to protect the right of adults to engage in consensual adult sodomy in private. I suspect you'd oppose these hypothetical laws, especially after the laws' supporters boasted about rejecting the clause protecting private sodomy and exulting in the possibility of putting "those damn sodomites" behind bars.

    (I'm doing a hypothetical here, so I'm assuming that the Lawrence decision never happened).

    Since you know people who might be targeted by a law such as I have supposed, you would presumably oppose such a law, at least until you got a specific and unambiguous exemption. But since you don't know anyone who might have objections to servicing same-sex weddings, you think you can support harmful laws which impact such people, and you won't get called on it.

  • Eduard van Haalen||

    "you" is generic H&R person and Reason personality.

  • Eduard van Haalen||

    See, jesse, the fact that you make yourself unpopular in your own social circle by defending the rights of private businesses is not exactly a reassuring fact to the opponents of SSM, who oppose these laws for the same reasons your friends support them.

  • ||

    My liberal friends think I'm batty and a select few dates have gone sour over the topic (a year long relationship got a bit tense when he found out I don't like Obama and started screaming about how much I must love GWB). Most of my gay friends come from very religious backgrounds, as have I, and while we don't hold with our religions anymore are relatively defensive of them being interfered with by the state, and my broader friend group skews much more socially/fiscally conservative or squishy libertarian than liberal, so I'm not really sure that you should interpret my above statement as a dire warning about the state of play.

  • SugarFree||

    It's tiresome that you keep banging this drum and expecting support.

    That and some handwaving is all they've got.

  • Tony||

    Marriage has long been considered a basic human right in United States jurisprudence--long before the right to engage in sodomy, in fact. So the overarching issue is whether the government is allowed to deny that right to gay people, and that issue was not decided today. The only thing decided today was that the federal government cannot constitutionally deny equal application of federal marriage laws and rights to people who are legally married. It was an equal protection decision, pure and simple.

  • ||

    The constitution means what it says John. The federal government refused to recognize some marriages performed in a state but not other marriages performed in the same state. That is a blatant violation of equal standing.

    This isn't rocket science.

  • Eduard van Haalen||

    The federal government, with the explicit approval of the Court today, refuses to recognize some marriages performed in a state - specifically, marriages between an American and a foreigner where the foreigner's intention in entering the marriage is to move to the U.S.

    The Court doesn't disclaim any authority by the feds to distinguish among state-recognized marriages - it simply doesn't like the particular distinction between same-sex and opposite-sex marriages.

    And note that for all their federalist rhetoric, they reserve the option to proclaim SSM a constitutional right despite any state law to the contrary. You can defend this position, but not on a federalist basis.

  • ||

    Well that refusal is also fucking retarded.

  • Auric Demonocles||

    So the feds have to accept the marriage of first cousins?

  • ||

    If Arkansas allows it, and they both consented, why shouldn't they?

  • ||

    Arkansas says no! Alabama on the other hand doesn't give two shits if you marry your cousin, just as God intended.

    The history of banning first cousin marriages is dumb and meddling. That these laws are still on the books is just foolish. I'd totally march in that parade (although CA also doesn't give two shits so I don't have to).

    I actually tried looking for information on Federal recognition, but was a bit confused by the results. It seems like the Feds don't care if you married your first cousin in Pakistan, but do care if you married him/her in Alabama. Am I misreading this?

  • ||

    IIRC, basically, the Feds have had to recognize every marriage that your state of residence recognizes.

  • Alec Leamas||

    Equal protection only guarantees equal treatment of similarly situated parties. And equal does not mean "same." So unless you are really going to abide by the anti-reality view that men and women are interchangeable and that no reasonable distinction can be made between them, then relationships between a man and a woman can be reasonably distinguished from relationships between men and men and women and women.

  • Ken Shultz||

    "Basically what you are saying Tim is that you are okay with the court giving up on any idea that the Constitution might have a meaning outside of current fashion in the judiciary is just great with you as long as you get a result you like."

    I don't see it that way.

    I think Supreme Court justices are people, too, and just like everyone else, their ideas change over time.

    Some of this is built into common law, too, isn't it? Why shouldn't new cases set new precedents?

    How many times has the Supreme Court heard gay marriage cases before?

  • ||

    I like how John is trying to twist an Equal Protection case regardining the Feds treating state's ssm like they treat osm, and John wants to turn this into an enshrinement of positive rights.

    The best part is that he doesn't even bother making the obvious case: anti-discrimination laws.

  • RightNut||

    Did the majority find that prop 8 is actually a tax and thus constitutional under the taxing power?

  • KalkiDas||

    Great news. But today, tomorrow, next week, next year we'll still be spied on by our own government. I know, not that important.

  • ||

    You must be new here. Search for NSA, I'm sure you'll find more than a few articles.

  • KalkiDas||

    I know it is mentioned and important here. But everywhere else? Nope.

  • ||

    Given how much Facebook hullabaloo occurred during the oral arguments, everything seems very calm.

    I wonder if everyone is slowly coming to the realization of the negative aspects of having your marriage being recognized by the Feds.

    Nah, probably just haven't read the news yet.

  • RightNut||

    I've tried explaining this to people and I usually just get a blank stare...then a few minutes later "but it's love!". I savor the look on their faces when I tell them I don't care.

  • Hash Brown||

    while leaving the larger question of gay marriage’s constitutionality to be decided in a future case.

    I quibble. Gay marriage is clearly constitutional. That is not something yet to be decided.

    The open issue is whether a state's refusal to put its stamp of approval on same-sex civil unions (called "marriage" or not) is consitutional.

  • Anvil||

    Gay marriage would only be constitutional at a state level, as voted upon. It cannot be defined at the federal level as that authority is not granted to the federal govt., meaning that DOMA itself is unconstitutional.

  • Cliché Bandit||

    I think sarc sufficiently covered my natural rights turf...my work here is done.

  • Tony||

    Curious, John, if the Court had found that the proponents of Prop. 8 had standing, but then declared that gay marriage was required to be legal in all states, would you have felt better?

  • Derek Balling||

    The headline should probably be clear on the limits of the ruling. Section 2 of DOMA is alive and well and vile.

  • ||

    All these fucking conservative whiners like John were rightly pissed when judges didn't exercise judicial activism to knock down the democratically legislated Obamacare. But now that they expand the scope of individual rights beyond the explicit text of the Constitution (in context with the 9th and 10th amendments and under the precedent of federalism) the Court are just a bunch of renegade activists who care not for democratic will.

  • Anvil||

    DOMA is unconstitutional because it is a federal govt. attempt to define marriage, the Constitution does not grant such authority to the federal govt., as it has always been a state issue.

    As for your gripe about "John" and Obamacare, that is also unconstitutional as it is an attempt by force of govt. to require the purchase of a good or service.

  • SpfldUser93||

    And here we see in the comments the last vestige of accepted discrimination in the country - anti-Catholicism. Try substituing Jews or synagogue for Catholics and The Church and see how that sounds to you.

  • SpfldUser93||

    Judicial activism is not striking down unconstitutional laws, it is creating laws that aren't written by Congress. Such as, just as a hypothetical example, deciding a case based on interpretation of a law expressly written as a penalty instead as a tax.

  • riffology||

    So, Proposition 8 is still the law in California?

  • Anvil||

    DOMA is unconstitutional, which is a given, because it is an attempt at the federal level to define marriage, which the federal govt. has no authority to decide anyways.

    As for the Prop 8 deal, that is a state voted issue and thus the federal govt. should have no say in the matter.

    The only way gay marriage can be a constitutional issue is at the state level, as voted on by the people and amended to the state constitution.

  • Anvil||

    I wonder how many gays and liberals who are happy about the DOMA decision are also pissed at Bill Clinton for signing it in 1996?

  • Polo Ralph Lauren outlet||

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