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Post by Tiger on Jul 5, 2009 20:33:35 GMT -5
www.365gay.com/news/judge-eyes-quick-action-on-calif-gay-marriage-ban/According to the article, the lawsuit claims that Prop 8 violates "the U.S. Constitution’s guarantee of due process and equal protection." I have two questions: If this does go to the U.S. Supreme Court, can gay marriage proponents expect a victory? What would the consequences be if they were instead handed a defeat? The lawsuit deals with the federal constitution, while (I believe) the state Supreme Court rulings that overturned state bans referenced their respective state constitutions. Does that mean that if SCOTUS rules against gay marriage, the state rulings will be unaffected?
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Post by dasfuchs on Jul 5, 2009 20:53:22 GMT -5
This is all based on IF the SCOTUS takes it up
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Post by skyfire on Jul 5, 2009 20:55:14 GMT -5
My guess is that if it did go so far as to hit SCOTUS, then we'll see one of two outcomes:
*If the justices decide to "interpret" the law, they'll most likely rule that marriage is something for the individual states to regulate and thus remand the suit back down to the courts in California to deal with.
*If the justices decide to "make" the law, they they'll either legalize gay marriage across the nation or ban it entirely depending upon how liberal the court is feeling at the time and if they choose to cite foreign laws as precedent again.
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Post by keresm on Jul 5, 2009 20:57:37 GMT -5
If they actually go by the constitution (and by truth), they will legalize gay marriage across the nation.
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Post by Tiger on Jul 5, 2009 21:00:42 GMT -5
*If the justices decide to "make" the law, they they'll either legalize gay marriage across the nation or ban it entirely depending upon how liberal the court is feeling at the time and if they choose to cite foreign laws as precedent again. But I don't see how they can overturn those state rulings based on this lawsuit. They're being asked to decide whether or not the Federal Constitution protects marriage as a right, not whether they personally think gay marriage should be legal. If they decide that marriage isn't protected by the Constitution, then that doesn't affect the state rulings, since those didn't rely on the Federal Constitution but the state constitutions, which the Supreme Court isn't being asked to interpret and probably doesn't even have the authority to interpret. Distinctions like that are why you might want to acquire some semblance of a clue about how judicial review works, Sky.
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Post by Armand Tanzarian on Jul 5, 2009 21:11:51 GMT -5
My guess is that if it did go so far as to hit SCOTUS, then we'll see one of two outcomes: *If the justices decide to "interpret" the law, they'll most likely rule that marriage is something for the individual states to regulate and thus remand the suit back down to the courts in California to deal with. *If the justices decide to "make" the law, they they'll either legalize gay marriage across the nation or ban it entirely depending upon how liberal the court is feeling at the time and if they choose to cite foreign laws as precedent again. Problem is, both the Constitution (which grants all people life, liberty and the pursuit of happiness) and DOMA are law. Some which outcome is truly "making" law?
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Post by The Lazy One on Jul 5, 2009 21:13:32 GMT -5
My guess is that if it did go so far as to hit SCOTUS, then we'll see one of two outcomes: *If the justices decide to "interpret" the law, they'll most likely rule that marriage is something for the individual states to regulate and thus remand the suit back down to the courts in California to deal with. *If the justices decide to "make" the law, they they'll either legalize gay marriage across the nation or ban it entirely depending upon how liberal the court is feeling at the time and if they choose to cite foreign laws as precedent again. Problem is, both the Constitution (which grants all people life, liberty and the pursuit of happiness) and DOMA are law. Some which outcome is truly "making" law? Shouldn't the Constitution trump the DOMA though? Just a thought...
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Post by Tiger on Jul 5, 2009 21:15:37 GMT -5
Problem is, both the Constitution (which grants all people life, liberty and the pursuit of happiness) and DOMA are law. Some which outcome is truly "making" law? Shouldn't the Constitution trump the DOMA though? Just a thought... The Constitution trumps everything, including majority will.
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Post by skyfire on Jul 5, 2009 21:59:07 GMT -5
But I don't see how they can overturn those state rulings based on this lawsuit. This is the same court that once declared a man growing wheat on his own property for his own consumption is interfering with interstate commerce. They got away with it because the case was decided in 1942, just as food rationing was starting. It's all a matter of seeing which way the winds are blowing and sending up a big enough kite.
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Post by Tiger on Jul 5, 2009 22:08:33 GMT -5
This is the same court that once declared a man growing wheat on his own property for his own consumption is interfering with interstate commerce. They got away with it because the case was decided in 1942, just as food rationing was starting. It's all a matter of seeing which way the winds are blowing and sending up a big enough kite. I sent you a PM detailing the reasoning behind that decision (Wickard v. Filburn) to avoid derailing of the thread. Face it Sky, you don't actually have any understanding of how judicial review works. You just like being self-righteous about the decisions you don't like.
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POSW
Full Member
Still metal, no longer Jewish
Posts: 217
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Post by POSW on Jul 5, 2009 22:33:26 GMT -5
My guess is that if it did go so far as to hit SCOTUS, then we'll see one of two outcomes: *If the justices decide to "interpret" the law, they'll most likely rule that marriage is something for the individual states to regulate and thus remand the suit back down to the courts in California to deal with. *If the justices decide to "make" the law, they they'll either legalize gay marriage across the nation or ban it entirely depending upon how liberal the court is feeling at the time and if they choose to cite foreign laws as precedent again. Problem is, both the Constitution (which grants all people life, liberty and the pursuit of happiness) and DOMA are law. Some which outcome is truly "making" law? Problem is, "life, liberty, and the pursuit of happiness" is in the Declaration of Independence, not the Constitution. Still, the 14th Amendment should cover it "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
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Post by Tiger on Jul 5, 2009 22:42:34 GMT -5
Problem is, both the Constitution (which grants all people life, liberty and the pursuit of happiness) and DOMA are law. Some which outcome is truly "making" law? Problem is, "life, liberty, and the pursuit of happiness" is in the Declaration of Independence, not the Constitution. Still, the 14th Amendment should cover it "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The strongest case against DOMA comes from the Full Faith and Credit Clause. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Meaning that if someone gets married in Iowa, Oklahoma has to recognize it as a marriage and treat it as such legally, which they currently do not.
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Post by Armand Tanzarian on Jul 6, 2009 0:10:33 GMT -5
Problem is, "life, liberty, and the pursuit of happiness" is in the Declaration of Independence, not the Constitution. Still, the 14th Amendment should cover it "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Heh, now that you mentioned it, Rush Limbaugh made the same mistake.
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Post by dasfuchs on Jul 6, 2009 1:59:16 GMT -5
This is the same court that once declared a man growing wheat on his own property for his own consumption is interfering with interstate commerce. They got away with it because the case was decided in 1942, just as food rationing was starting. It's all a matter of seeing which way the winds are blowing and sending up a big enough kite. I sent you a PM detailing the reasoning behind that decision (Wickard v. Filburn) to avoid derailing of the thread. Face it Sky, you don't actually have any understanding of how judicial review works. You just like being self-righteous about the decisions you don't like. Oh come now, Sky not know about what he's bitching about? impossible Now my question would be, if the SCOTUS deems prop 8 a crock, how will this effect the US overall, will states that don't have laws allowing gay marriage adjust to accept federal ruling, or remain as is
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Post by ausador on Jul 6, 2009 2:49:36 GMT -5
That would depend on how the Supreme Court worded their ruling, if there ever is one. Provided it does come before them they could simply rule on the narrow merits of the case and overturn Prop. 8 without mandateing countrywide change. They have done similar rulings in the past that were on the face of them nonsensical, but no one ever said the law had to be logical. With the current make up of the court I would be looking for as narrow a ruling as was possible and not some wholesale sweeping proclamation overturning all anti-same sex marriage laws.
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