Same-sex marriage coming to Utah

[Jacob]

You're working very hard not to understand what I'm saying. I'm not going to work much harder to explain how something I don't think will happen can happen, so I'll leave just it at this. The most likely outcome of this legal battle is a 5-4 majority saying exactly what Justice Scalia, in his Windsor dissent, predicted they would say: the principles of equal protection which determined the outcome of that case likewise determine the outcome of this case. There is a slight possibility that Justice Roberts will sign on to that majority, though an unlikely one, since his own Windsor dissent contradicted that suggestion. But if you're asking who of the two is more likely to disavow what they said in Windsor, it's not likely to be Justice Kennedy, since his opinion was the majority's.

Well we agree about most of it. I only objected to the thing you said about Roberts. Although regarding, Kennedy, there would be no need to disavow Windsor, and if you read his opinion you will see that he clearly States that marriage is left to the states. He only made an exception for Windsor,which wasn't really an exception as no state law was involved. From his perspective there is no contradiction.

[Solon]

What? stare decisis? This will be a case of first impression for the supreme court. Are you sure you know what stare decisis means?

LOL.
All-American, you should think about learning Latin & going to law school before you re-engage on this subject.

thanks in advance.

[All-American]

Well we agree about most of it. I only objected to the thing you said about Roberts. Although regarding, Kennedy, there would be no need to disavow Windsor, and if you read his opinion you will see that he clearly States that marriage is left to the states. He only made an exception for Windsor,which wasn't really an exception as no state law was involved. From his perspective there is no contradiction.

Scalia's dissent suggests otherwise:

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. . . .

[T]hat Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

[Jacob]

Scalia's dissent suggests otherwise:

It would not be unusual for Scalia to disagree with the author of a majority opinion regarding the inevitable result of the majority's logic. Its not that Scalia is necessarily wrong, its that he doesn't speak for the majority and his dissent is not precedent. Though the Utah judge sure though it was.

[All-American]

It would not be unusual for Scalia to disagree with the author of a majority opinion regarding the inevitable result of the majority's logic.

Yes, as he noted in his Windsor dissent.

When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any rela- tionship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence.

Have you not read it? You really should. It's fantastic writing.

[UVACoug]

You're working very hard not to understand what I'm saying. I'm not going to work much harder to explain how something I don't think will happen can happen, so I'll leave just it at this. The most likely outcome of this legal battle is a 5-4 majority saying exactly what Justice Scalia, in his Windsor dissent, predicted they would say: the principles of equal protection which determined the outcome of that case likewise determine the outcome of this case. There is a slight possibility that Justice Roberts will sign on to that majority, though an unlikely one, since his own Windsor dissent contradicted that suggestion. But if you're asking who of the two is more likely to disavow what they said in Windsor, it's not likely to be Justice Kennedy, since his opinion was the majority's.

Justice Kennedy doesn't need to disavow Windsor, because it doesn't say that gay marriage is a constitutional right (contrary to the intellectually dishonest ruling from Judge Shelby and the hyperbole of Justice Scalia).

[All-American]

Justice Kennedy doesn't need to disavow Windsor, because it doesn't say that gay marriage is a constitutional right (contrary to the intellectually dishonest ruling from Judge Shelby and the hyperbole of Justice Scalia).

Then maybe you can say why the states are allowed to discriminate against gays when the federal government cannot.

[UVACoug]

Then maybe you can say why the states are allowed to discriminate against gays when the federal government cannot.

The equal protection clause has been interpreted to prevent the government from discriminating between two similarly situated people without a good justification. For some groups (members of minority races, for example), it is almost impossible for the government to have a good justification to discriminate. Members with minority sexual orientations have not traditionally been subject to the same heightened scrutiny, and the courts have gone out of their way to make clear (I believe in a disingenuous way) that they are not applying any form of heightened scrutiny to laws that discriminate against homosexuals. (P.S. - I think this is intellectually dishonest. Gays, who have been historically ostracized and abused, are entitled to some additional scrutiny from the court ... though not strict scrutiny).

In Windsor, the equal protection ("discrimination") question was not "can the federal government discriminate against gays" ... it was "can the federal government discriminate between straight married couples and gay married couples when it extends certain benefits that are intended for married couples." Justice Kennedy's decision is not very clear, but it seems that he is saying that the government cannot discriminate on this basis for a few reasons: (1) the federal government does not have the power to define marriage; that is an exclusive function of the states; (2) the federal government had no rational basis for discriminating between married couples on the basis of sexual orientation; (3) discriminating between gay married couples and straight married couples interferes with a persons constitutional right to sexual autonomy (this is more tenuous, but there is language in the opinion that suggests this was part of Justice Kennedy's reasoning).

The questions raised in Windsor are not the same as the questions raised in the Utah gay marriage case, regardless of what Judge Shelby and Justice Scalia say. The questions are similar, and I don't disagree that they may suggest which way Justice Kennedy will go on the ultimate gay marriage question, but they are different in important ways that matter to Justice Kennedy: (1) There is no federal question in the Utah case. Justice Kennedy has always been a string proponent of state's rights (see his decision in the Obamacare case, for example). Regardless of what you think about the equal protection question in Windsor, it cannot be disputed that the federalism question was at least as important to Justice Kennedy. He believes marriage is a function that is the exclusive role of the states. (2) Treating one married couple differently than another married couple on the basis of sexual orientation when it comes to extending federal benefits is not the same as treating a straight couple differently than a gay couple. You may think it is a difference that doesn't matter, but it is clear that the Court sees a distinction. The outcome of Windsor, which the Court didn't seem to have a problem with, is to treat some gay couples differently than others on the basis of whether they were married or not. The problem in Windsor was not discrimination against gays ... it was discrimination against married couples. (3) The type of discrimination at issue is very different. In Windsor, the federal government was actively extending certain benefits to one type of married couple and not others. The issue in the Utah case is not benefits. It is discrimination with regard to what kind of relationship a state places its stamp of approval on. If the Utah case was about benefits, then presumably the state could grant civil unions to people and there would be no further issue ... but that isn't the issue in the Utah case. Justice Kennedy has a pattern of protecting individuals from having the state interfere with their ability to live their lives, but he also has a libertarian streak where the government should avoid inserting itself into intimate relationships as much as possible. Its not clear how he will weigh things in the gay marriage context.

Ultimately, I agree that Windsor suggests that Kennedy will probably end up on the side of Judge Shelby (though for different reasons). It is not a slam dunk though, and he is much more likely to flip than Justice Roberts is. Though similar, the Windsor case has some real differences that make the gay marriage question a true open question.

[All-American]

The equal protection clause has been interpreted to prevent the government from discriminating between two similarly situated people without a good justification. For some groups (members of minority races, for example), it is almost impossible for the government to have a good justification to discriminate. Members with minority sexual orientations have not traditionally been subject to the same heightened scrutiny, and the courts have gone out of their way to make clear (I believe in a disingenuous way) that they are not applying any form of heightened scrutiny to laws that discriminate against homosexuals. (P.S. - I think this is intellectually dishonest. Gays, who have been historically ostracized and abused, are entitled to some additional scrutiny from the court ... though not strict scrutiny).

In Windsor, the equal protection ("discrimination") question was not "can the federal government discriminate against gays" ... it was "can the federal government discriminate between straight married couples and gay married couples when it extends certain benefits that are intended for married couples." Justice Kennedy's decision is not very clear, but it seems that he is saying that the government cannot discriminate on this basis for a few reasons: (1) the federal government does not have the power to define marriage; that is an exclusive function of the states; (2) the federal government had no rational basis for discriminating between married couples on the basis of sexual orientation; (3) discriminating between gay married couples and straight married couples interferes with a persons constitutional right to sexual autonomy (this is more tenuous, but there is language in the opinion that suggests this was part of Justice Kennedy's reasoning).

The questions raised in Windsor are not the same as the questions raised in the Utah gay marriage case, regardless of what Judge Shelby and Justice Scalia say. The questions are similar, and I don't disagree that they may suggest which way Justice Kennedy will go on the ultimate gay marriage question, but they are different in important ways that matter to Justice Kennedy: (1) There is no federal question in the Utah case. Justice Kennedy has always been a string proponent of state's rights (see his decision in the Obamacare case, for example). Regardless of what you think about the equal protection question in Windsor, it cannot be disputed that the federalism question was at least as important to Justice Kennedy. He believes marriage is a function that is the exclusive role of the states. (2) Treating one married couple differently than another married couple on the basis of sexual orientation when it comes to extending federal benefits is not the same as treating a straight couple differently than a gay couple. You may think it is a difference that doesn't matter, but it is clear that the Court sees a distinction. The outcome of Windsor, which the Court didn't seem to have a problem with, is to treat some gay couples differently than others on the basis of whether they were married or not. The problem in Windsor was not discrimination against gays ... it was discrimination against married couples. (3) The type of discrimination at issue is very different. In Windsor, the federal government was actively extending certain benefits to one type of married couple and not others. The issue in the Utah case is not benefits. It is discrimination with regard to what kind of relationship a state places its stamp of approval on. If the Utah case was about benefits, then presumably the state could grant civil unions to people and there would be no further issue ... but that isn't the issue in the Utah case. Justice Kennedy has a pattern of protecting individuals from having the state interfere with their ability to live their lives, but he also has a libertarian streak where the government should avoid inserting itself into intimate relationships as much as possible. Its not clear how he will weigh things in the gay marriage context.

Ultimately, I agree that Windsor suggests that Kennedy will probably end up on the side of Judge Shelby (though for different reasons). It is not a slam dunk though, and he is much more likely to flip than Justice Roberts is. Though similar, the Windsor case has some real differences that make the gay marriage question a true open question.

There's nothing in here which the quotes from Justice Scalia's dissent above don't thoroughly address and completely dismiss. If you are entertaining the notion that the Justice Kennedy who wrote the Windsor majority opinion will side with Utah on this issue, you are kidding yourself.

[imanihonjin]

There's nothing in here which the quotes from Justice Scalia's dissent above don't thoroughly address and completely dismiss. If you are entertaining the notion that the Justice Kennedy who wrote the Windsor majority opinion will side with Utah on this issue, you are kidding yourself.

Agreed. I would be shocked if Kennedy sided with Scalia on the Utah issue.

[Jacob]

There's nothing in here which the quotes from Justice Scalia's dissent above don't thoroughly address and completely dismiss. If you are entertaining the notion that the Justice Kennedy who wrote the Windsor majority opinion will side with Utah on this issue, you are kidding yourself.

It's not about whether Kennedy agrees with the Scalia dissent. Totally irrelevant. The question is whether Kennedy wants to contradict Kennedy from a few months ago.

And if Windsor settled the issue, as you argue, I wonder why the full court deemed it most prudent to block gay marriages from being performed in Utah. Hmm.

I've stated many times that I'm not confident the Court will get the ruling right (i.e. there is not constitutional right to a state issued marriage licence for gay couples). It it just odd to me that you are so confident that the jurisprudence is already settled, when the Supreme Court itself quite clearly disagrees.

[All-American]

It's not about whether Kennedy agrees with the Scalia dissent. Totally irrelevant.

Good thing I didn't say that, then.

The question is whether Kennedy wants to contradict Kennedy from a few months ago.

He won't.

And if Windsor settled the issue, as you argue, I wonder why the full court deemed it most prudent to block gay marriages from being performed in Utah. Hmm.

Same reason McDonald came after Heller. It's just a matter of letting the other shoe drop.

I've stated many times that I'm not confident the Court will get the ruling right (i.e. there is not constitutional right to a state issued marriage licence for gay couples). It it just odd to me that you are so confident that the jurisprudence is already settled, when the Supreme Court itself quite clearly disagrees.

Because, thankfully, it takes training in neither Latin nor Law to count to five.

[wuapinmon]

(i.e. there is not constitutional right to a state issued marriage licence for gay couples).

Unless there is NO RIGHT for anyone to obtain a state-issued marriage license......14th Amendment. QED.

[SeattleUte]

It's not about whether Kennedy agrees with the Scalia dissent. Totally irrelevant. The question is whether Kennedy wants to contradict Kennedy from a few months ago.

And if Windsor settled the issue, as you argue, I wonder why the full court deemed it most prudent to block gay marriages from being performed in Utah. Hmm.

I've stated many times that I'm not confident the Court will get the ruling right (i.e. there is not constitutional right to a state issued marriage licence for gay couples). It it just odd to me that you are so confident that the jurisprudence is already settled, when the Supreme Court itself quite clearly disagrees.

They don't have to conclude there is a constitutional right to a state issued marriage licence for gay couples. They only have to find that the religious position lacks any rational basis. That shouldn't be hard and I've always felt they might go that way.

[Jacob]

Good thing I didn't say that, then. He won't.Same reason McDonald came after Heller. It's just a matter of letting the other shoe drop.

But that's what you are saying. In Windsor, Kennedy (and the entire majority), affirmed that states are the sole arbiters of marriage law. Now you say that he will likely change his mind. Whatever. Lets just drop it.

They don't have to conclude there is a constitutional right to a state issued marriage licence for gay couples. They only have to find that the religious position lacks any rational basis. That shouldn't be hard and I've always felt they might go that way.

I agree, it could go that way. The writing has been on the wall since Romer. That's why some were pushing for a US constitutional amendment regarding marriage. Because they feared that ruling.