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The Supremes get it right! [Jun. 26th, 2013|11:24 am]
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By now everyone has heard the news.

Wow. These decisions came down exactly as I predicted: overturn of DOMA based on marriage being a states rights issue, refusal to hear Prop. 8 because of lack of standing.

The Prop. 8 decision confused the heck out of me at first glance, since Alito, Kennedy, and Sotomayor were dissenting. But they were dissenting on the grounds that California law allows proponents of an approved initiative to have standing if the government refuses to defend it.

Some people are disappointed that SCOTUS didn't just prohibit all laws against gay marriage. That was absolutely not going to happen with these cases. That wasn't the issue on the table, and such a ruling would have been a staggering overreach of the court. Marriage is a State issue, for the most part, and they had to rely on that fact for the decision on DOMA. Gay marriage will come up again as an issue in a couple years when a Loving v. Virginia kind of case happens.

The plaintiffs in this case wanted Prop. 8 upheld, so denying their standing effectively allows the California Supreme Court's overturning of Prop. 8 to be the final word, killing that law. That's a good thing.

And DOMA is only overturned as concerns denying federal benefits to same sex couples in states that allow same sex marriage. Section 2 of DOMA, which allows states to prohibit gay marriage, still stands. Which means that same sex couples living in states that prohibit gay marriage will still not get federal benefits. Which is the perfect setup for the next step in legalizing same sex marriage: a Full Faith and Credit challenge in the line of Loving v. Virginia.

This is a lot of progress.
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Comments:
[User Picture]From: wilhelmina_d
2013-06-26 03:44 pm (UTC)

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Good point about those living in non-same-sex-recognizing states. Still, overall a good day for equality. :)
[User Picture]From: zoethe
2013-06-26 04:38 pm (UTC)

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Very much a good day for equality. The court has all but invited the final argument, but I honestly hope it doesn't happen until a few more states accept same sex marriage.
[User Picture]From: bart_calendar
2013-06-26 03:49 pm (UTC)

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The Robert's Court is really not ending up being anywhere near as right wing nutbaggy as Bush hoped when he made him Chief Justice.
[User Picture]From: zoethe
2013-06-26 04:38 pm (UTC)

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Nope!
From: anonymousalex
2013-06-26 03:56 pm (UTC)

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I am glad that this happened as it did, but strangely not as happy now as I was sad that Prop 8 passed in the first place. Perhaps that's in part because it gives the proponents an excuse to barf out their typical "activist judges" trope from now until eternity.

I am, however, relieved that it didn't turn out differently. You were right in your predictions, but of course it wouldn't have been the first time that something wacky happened with a major Supreme Court decision.

-Alex
[User Picture]From: zoethe
2013-06-26 04:41 pm (UTC)

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Prop. 8 happened as part of a last gasp panic right before the tide of public opinion turned. A number of states did the same thing at the same time, and now they are starting to undo it. Historically, it's going to be an amusing little hiccup. Living through it, not fun, but in the long run it's going to be a trivia question.
From: anonymousalex
2013-06-26 08:20 pm (UTC)

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Yeah, but CA could have been the first state to validate SSM by popular vote of the public. Instead, they're a trivia question.

-Alex
[User Picture]From: zoethe
2013-06-26 08:27 pm (UTC)

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True. Still, we get it however we can.
From: anonymousalex
2013-06-26 04:03 pm (UTC)

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P.S.:

Wanted: Gay couple living in state prohibiting marriage (preferably Virginia), willing to travel and marry in other state. Last name "Loving" a plus.

-Alex
[User Picture]From: zoethe
2013-06-26 04:42 pm (UTC)

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This is where I need a "Like" button. ;-)
[User Picture]From: audacian
2013-06-26 05:06 pm (UTC)

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ha!
[User Picture]From: hrj
2013-06-26 10:44 pm (UTC)

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Word.
[User Picture]From: hrj
2013-06-26 10:47 pm (UTC)

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Sorry -- should have mentioned that I tracked here via a link from ... now I've lost track who. Didn't mean to have bad manners.
[User Picture]From: zoethe
2013-06-26 10:53 pm (UTC)

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No worries; I write for a public audience, so people coming in from the blue is just fine.
[User Picture]From: doubledgedtruth
2013-06-27 01:47 am (UTC)

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I know someone with the last name of Truelove. That should work in a pinch. She's in GA, though, not VA.
From: simulated_knave
2013-06-27 02:43 am (UTC)

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You had that already. Nice Floridian couple. Except, of course, they went to Canada. And then, when they wanted to get divorced, blamed Canada for the fact that they couldn't (because they didn't live in Canada).

Why yes, I'm still bitter, why do you ask?
From: anonymousalex
2013-06-27 06:05 pm (UTC)

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Blame Canada! Blame Canada!

-Alex
From: simulated_knave
2013-06-30 02:45 am (UTC)

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They had to, before somebody thought of blaming them.
[User Picture]From: jeanniemac
2013-06-26 05:20 pm (UTC)

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Thanks for the great explanation. Maybe it wasn't the great reversal that everyone hoped for but it was still a big step forward.
[User Picture]From: zoethe
2013-06-26 05:32 pm (UTC)

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I was neither expecting nor hoping for a bigger step than this. I don't want to see same sex marriage become the next abortion fight. This is a state issue, and more states need to accept same sex marriage. Winning the hearts and minds of the people is happening, and with time it will be a majority.
[User Picture]From: houseboatonstyx
2013-06-26 07:04 pm (UTC)

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And in the category of the Best Sensible Balanced LJ Entry on the SC Which I Have Read So Far Today....

Forget the envelope!

This. +
[User Picture]From: zoethe
2013-06-26 07:09 pm (UTC)

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Wow, thank you so much!
[User Picture]From: houseboatonstyx
2013-06-26 07:19 pm (UTC)

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And here's more you will like, though in the Professional Category. ;-)

http://maddowblog.msnbc.com/_news/2013/06/26/19155762-it-is-the-right-thing-to-do?lite
[User Picture]From: zoethe
2013-06-26 07:53 pm (UTC)

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That rocks.
[User Picture]From: cinema_babe
2013-06-26 09:08 pm (UTC)

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I have this suspicion that John Roberts is very aware that he presides over a court that is deeply philosophically divided but that he believes there is always an acceptable middle ground that constitutes an almost win/almost win situation for most involved.

I don't know if it's fear, suspicion or what but I don't think he's big on the Supreme Court making broad sweeping changes in one fell swoop.
[User Picture]From: zoethe
2013-06-26 10:58 pm (UTC)

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And I totally and completely respect that. As much as my nerdly, liberal heart goes pitterpat for William O. Douglas, the judicial reach of the Warren Court has some serious judicial overreach issues. Far better to send messages back to the states via narrow decisions and allow these big changes to grow organically.
[User Picture]From: ccr1138
2013-07-02 03:27 pm (UTC)

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I was listening yesterday to Nina Totenberg on NPR talk about the Roberts court and how he takes the long view of things ... incremental steps. That's the way to go. Everybody's so eager to have change RIGHT NOW, but I like the way same-sex marriage is gaining acceptance at the grass-roots level first, rather than being forced onto society before they have time to get used to the idea.
[User Picture]From: zoethe
2013-07-02 03:29 pm (UTC)

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Exactly. The tide is changing; it's just a matter of time.
[User Picture]From: mplsindygirl
2013-06-26 09:56 pm (UTC)

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Thank you for explaining this in such a clear, concise manner.
[User Picture]From: zoethe
2013-06-26 10:55 pm (UTC)

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Glad to help. It's interesting how much I agree with Scalia on this one, because he focuses so tightly on the issues of standing in both cases.
From: anonymousalex
2013-06-27 01:56 am (UTC)

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I beg to differ. The Scalia dissent I read seemed to go on endlessly mocking the majority for a lack of a clear legal principle. And standing, yeah.

-Alex
[User Picture]From: zoethe
2013-06-27 02:46 am (UTC)

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Well, mocking the majority is Scalia's way.
From: anonymousalex
2013-06-27 06:08 pm (UTC)

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Now where's my "Like" button?

Though I do think he's entitled to a little bit of an "I told you so" based on his Lawrence v. Texas dissent.

-Alex
[User Picture]From: cynic51
2013-06-28 01:57 am (UTC)

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I read somewhere that Full Faith and Credit might be a tougher call than it looks on the surface. The example used was something about how first cousins can get married in some states but not in others and technically don't have FF&C if the move to ones that don't.

This isn't the article I read, but it seems to cover the main points. Specifically:
http://www.law.yale.edu/news/4174.htm

Quote: "The fly in the ointment was that nobody bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses."

With that said, this post is from 2004, and facts on the ground may mean that pragmatically the fact that your average first cousins aren't easily recognizable as such, whereas your average gay/lesbian couple is pretty easily recognizable as such, may sway the stance. Plus, the quote specifically cites persons of different races, and we know that one turned out in the end. So I'm sure we'll still get there - but the precedents maybe aren't as clear as we'd like them to be.
[User Picture]From: zoethe
2013-06-28 02:36 am (UTC)

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This person is INCREDIBLY misinformed. Refusing to recognize marriage of people of different races has been unconstitutional since Loving v. Virginia. Rules like the amount of time since a divorce is the kind of policy that does not discriminate against people based on any kind of individual characteristic. States where first cousin marriages are prohibited still recognize the marriages of first cousins who move into the state (though declare invalid marriages of first cousin residents who go to another state just to get married) and the marriages of people who do not meet the age requirements if they move into the state (though, again, not the marriages of residents who go to another state solely for marrying),

All those marriages are recognized, and the notion that Full Faith and Credit hasn't been challenged, is completely ridiculous.
[User Picture]From: cynic51
2013-06-28 03:30 am (UTC)

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I don't think she's arguing it prevails against Loving v. Virginia; she's saying that the argument has been used before against FF&C, and that LvV doesn't negate the precedent in other cases.

If the state can currently argue against first cousins marrying, and not validate marriages of their residents who get married in other states, then they can presumably do so against gays/lesbian residents marrying in other states. That's slightly separate from FF&C though.
From: anonymousalex
2013-06-28 03:36 pm (UTC)

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So I just read (part of) Loving v. Virginia for the first time in a while, and somewhat to my surprise discovered that the Full Faith & Credit issue wasn't raised at all. It was just a straight-up question whether a state's anti-miscegenation laws can stand up to the 14th Amendment.

I also had forgotten that Mr. and Mrs. Loving were criminally prosecuted and given a one year (suspended) sentence, and an order to leave the state for 25 years. I'm not aware that any states criminally punish out-of-state same-sex marriages (yet).

Also, incidentally, I found this quote from Mildred Loving:

"I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about."

And now I'm all misty.

-Alex
[User Picture]From: zoethe
2013-06-28 05:22 pm (UTC)

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What a great quote.
(Deleted comment)
[User Picture]From: zoethe
2013-07-02 03:30 pm (UTC)

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Possibly not at this point. Which makes a natural and incremental step for the next challenge.