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It will pass - option 4 is how I voted.
Not quite sure I follow. Option 4 would overturn the lower court ruling.
After all this is said and done - states won't be able to ban same sex marriage (and have to recognize them from other states). I believe that's how the SCOTUS will rule.
So how do you think the court will end up ruling?
The only real question is whether it will be a 5-4 or a 6-3 decision. There is no question that the court is going to find that bans violate the Constitution, Justice Kennedy pretty much signaled that in the DOMA case which is what set Scalia off on his vitriolic dissent. Scalia, Thomas and Alito are likely to be the 3 dissenters.I picked 4 because I don't think Chief Justice John Roberts wants the legacy of being anti-gay in his court. I see a possible 6-3 decission.
Certainly states won't be able to ban SSM. That's the only rational outcome. Then the only way to get the laws to make sense is to have homosexual marriage protected the same as heterosexual, so states won't be able to pick and choose whose they recognize. What I'm interested to see if what level of constitutional scrutiny laws relating to sexual orientation will warrant.
My guess is something along the lines of option 4. Aside from being the right result constitutionally, social mores have changed and with it attitudes towards homosexual relationships and the court, for better or worse is influenced by, and a part of, society.
Justice Kennedy said:“Regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. . . . The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “protection of offspring, property interests, and the enforcement of marital responsibilities... [and] there is no federal law of domestic relations.”...
Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.
However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows
We have a governing mechanism for capturing that, when it occurs. It is called "A Legislature".
That being said, I'm fairly pessimistic about it - Option 4 is the most likely. Kennedy has been clear before that States have the right to define marriage for themselves (US v Windsor, ironically):
Quotes taken from the argument that Kennedy will choose Option #2
....but I think is probably willing to subordinate the Constitutional to the Political here.
Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.
We may just be arguing semantics, but sexual activity between homosexuals is in fact a protected liberty interest under substantive due process. Thus, a law banning such activity must pass strict scrutiny in order for the court to uphold it as unconstitutional. See Lawrence v. Texas
When I meant sexual-orientation, I meant the right to engage in sexual activity between homosexuals. However, you are correct, homosexuals are not currently a protected class.
The only real question is whether it will be a 5-4 or a 6-3 decision. There is no question that the court is going to find that bans violate the Constitution, Justice Kennedy pretty much signaled that in the DOMA case which is what set Scalia off on his vitriolic dissent. Scalia, Thomas and Alito are likely to be the 3 dissenters.
Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.
Sexual orientation is a protected class in some states.
At the federal level, the EEOC has used 'gender discrimination' in legal challenges to support rights for homosexuals successfully in most cases.
That is correct, though neither are particularly relevant to the cases SCOTUS is hearing on SSM.
Yes it is. The issue can also recognize that in the area of contracts (state-sponsored marriage licenses), it's gender discrimination. One gender is discriminated against.
I dont know if that is one that SCOTUS will use but it has been proposed and is similar to the way that the EEOC has successfully met challenges.
Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.
However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows
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