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DOMA Case was Corrupt Horse & Pony Show that SCOTUS Had No Authority to Hear.

Trip

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The facts demonstrate that the recent DOMA case, U.S. v Windsor, was nothing but a corrupt hose and pony show that SCOTUS did not have the jurisdiction to hear, and was resolved two courts below the Supreme Court. The fact that the Supreme Court was acting in disregard of the Constitution, and long passed its legitimate authority is was the motivation behind Justice Scalia's scathing dissent.


Case summary of United States vs Windsor, from wikipedia:

Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada, in 2007. Spyer died in 2009, leaving her entire estate to Windsor. Because their marriage was recognized by the state of New York, Windsor sought to claim the federal estate tax exemption for surviving spouses. She was barred from doing so by Section 3 of DOMA, which provided that the term "spouse" only applies to a marriage between a man and woman. In effect, the Internal Revenue Service found that the exemption did not apply to same-sex marriages, denied Windsor's claim, and compelled her to pay $363,053 in estate taxes.


On November 9, 2010, a lawsuit was filed against the federal government in the United States District Court for the Southern District of New York, where Windsor sought a refund because DOMA singled out legally married same-sex couples for "differential treatment compared to other similarly situated couples without justification."[1] On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff's position that DOMA violated the U.S. Constitution and said he would no longer defend the law in court. On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) continued defense of the law. On June 6, 2012, Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest. The U.S. Second Circuit Court of Appeals affirmed the decision on October 18, 2012.


BLAG and the U.S. Department of Justice (DOJ) appealed the decision to the U.S. Supreme Court, which granted certiorari in December 2012. On March 27, 2013, the court heard oral arguments. On June 26, 2013, the Court issued a 5–4 decision which found Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment".[2]:25

Above, I've highlighted the portions in maroon that are "a problem".

Analysis of Facts & Scalia's Opinion:

1) The biggest problem is that Holder agreed with the plaintiff, and gave her the taxes back with interest, thereby she was made whole, and the case should have ended at the U.S. District Court for the Southern New York. However later the DOJ joined to appeal the decision to the Supreme Court. But as we've been reminded repeatedly, Holder IS THE DOJ!

The DOJ was not actually appealing the decision, and was not defending DOMA, but rather was appealing the decision because a lower court had made what it viewed as the proper decision but too early, before the Supreme Court could rule on DOMA, and invalidate the law. As pointed out by Scalia, the previous lower court decisions would not have created any precedent regarding DOMA:

" ...the suit should have ended there. The further proceedings should have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States."

In point of fact, the United States Attorney General, Eric Holder, is the head of the Department of Justice (DOJ). Thus, the only reason the case was being heard by the Supreme Court was to establish precedent, and issue a judicial edict invalidating legitimate Congressional Federal Law only applicable to Federal process, when that Court has no legitimate authority to hear the case due to the fact that "there is no controversy before us [the Court]" (Scalia).

Scalia nails the overall issue involved being one of Separation of Powers, citing Madison in Federalist #49, who indicates that none of the branches of government "... can pretend to an exclusive or superior right of settling the boundaries between their respective powers".

This case was not heard by the Court because of any sort of "due process" civil rights violation by DOMA and Congress, as there was no such violation. Quite obviously the Federal government has the exclusive and legitimate authority to legislate the Federal government's own process. Nowhere among any of the rights, is there any assurance of outcome in the form of recognition and reward for actions, particularly not when those actions are done by entirely different terms than have been recognized by societies over mankind's entire history, for good reason. Such a dictate of recognition and reward is not about rights at all, but rather dictation of the terms of society by government, something the founders deliberately sought to prohibit.

This case was actually about a few government elitist fascists dictating the terms of society, Social Engineering, in disregard of the Constitution, legal process, and willingness to corrupt even the real significance of rights themselves, in gross violation of their own constitutional authority.

2) The other party in the suit was the Bipartisan Legal Advisory Group (BLAG), which is a standing body of the U.S. House of Representatives , comprised of five members of the House leadership: the Speaker, the majority and minority leaders, the majority and minority whips it directs the activities of the House Office of General Counsel. Given that there is equal input from minority leaders and minority whips (The Democrats) it is uncertain whose interest BLAG was actually representing, but one thing is certain, BLAG itself did not have any real standing on its own, and the DOJ, teamed with BLAG, was not representing any sort of real support for DOMA.

3) As indicated by Scalia, the US v Windsor never should have gotten Certiorari (Cert) because, "Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction." Quite literally there was no "beef" for the court to resolve, and therefore no remedy the Court could provide, so the Court should not have granted Cert and heard the case.

The contention over even considering and hearing the case is borne out by looking at the SCOTUS Blog entries. Not only was the original en banc Cert hearing deadline not met and extended, but also the Windsor case was "Distributed for conference", not once, as is the custom, but distributed for conference THREE TIMES: Oct 29 2012, Nov 13 2012, and Dec 3 2012! I'm no attorney, but I've never seen anything like this before.

Quite obviously some group among the Justices was refusing to take "no" for an answer as to granting Cert and hearing the case, and this also is indicated by Scalia in his description of the majority's rationale to hear the case. In his minority opinion, Scalia references the "majority vision", with great sarcasm, of the Supreme Court's role, indicating, "The Court says that we have the power to decide this case because if we did not, then our "primary role in determining the constitutionality of a law" (at least one that "has inflicted real injury on a plaintiff ") would "become only secondary to the President's." Nowhere in the history of the Court's reasoning has it every involved a motivation to merely supersede the President so as to be on record (which is really not the ,majority's motivation at all), particularly not when there is no "inflicted real injury on a plaintiff", which Scalia indicated parenthetically, with obvious strong bitterness.

What we're witnessing is not just the court grossly altering court process in order to hear and rule on the case, but the court itself actually fabricating and dictating law, and grossly distorting the terms of the Constitution and its own authority in the process, particularly given it has no authority render judgment at all. And this Scalia indicates too, with his reference to "black-robed supremacy", which believes its authority is 'to say what the law is,' which is not the legitimate authority of the Court at all.

The actual fact that there was any Supreme Court hearing of this case at all, which was nothing but a contrived horse and pony show, only came about because of collusion between the DOJ, the plaintiff, and undeniably certain members of the Court, all done by a means to subvert the legitimate rule of law, and corrupt the Constitution, so as to engage in what they believe was a superior social engineering dictate.

Not only should every American be angered by what transpired, regardless of their personal view on "gay marriage", but they should be very afraid for our future as a Republic, governed by the Rule of Law, rather than the Rule of Men.



 

Trip

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RELEVANT SCALIA OPINION IN U.S. v WINDSOR


Scalia (p. 36-37)

Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? The answer lies at the heart of the jurisdictional portion of today's opinion, where a single sentence lays bare the majority's vision of our role. The Court says that we have the power to decide this case because if we did not, then our "primary role in determining the constitutionality of a law" (at least one that "has inflicted real injury on a plaintiff ") would "become only secondary to the President's." Ante, at 12. But wait, the reader wonders--Windsor won below, and so cured her injury, and the President was glad to see it. 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." Ibid. (internal quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere "primary" in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of "primary" power, and so created branches of government that would be "perfectly coordinate by the terms of their common commission," none of which branches could "pretend to an exclusive or superior right of settling the boundaries between their respective powers." The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of "greater intrinsic value" or "stamped with the authority of more enlightened patrons of liberty" than a government of separate and coordinate powers. Id., No. 47, at 301.

For this reason we are quite forbidden to say what the law is whenever (as today's opinion asserts) " 'an Act of Congress is alleged to conflict with the Constitution.' "Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The "judicial Power" is not, as the majority believes, the power " 'to say what the law is,' " ibid., giving the Supreme Court the "primary role in determining the constitutionality of laws." The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.


Scalia (p 39):


"What the petitioner United States asks us to do in this case before us is exactly what the respondent Windsor asks us to do: not provide relief from the judgment below but to say that the judgment was correct. And the same was true of the Court of Appeals. Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgement of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings should have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.

We have never before agreed to speak-to "say what the law is" - where there is no controversy before us. In more than two centuries that this Court has existed as an institution, we never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question's answer. The United States reluctantly conceded that at oral argument."
 

ChuckBerry

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BTW, I agree with Scalia. SSM supporters ought to be patient and achieve a clean victory that isn't a mere end run around our legal system.
 

Trip

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The overall issue, and gross problem with the U.S v Windsor opinion, even as stated by Scalia, is the issue of Separation of Powers.

Undeniably the U.S. Congress has the authority to do what was done in DOMA. If the U.S. Congress does not have authority to write Federal Laws applicable solely to Federal process, then no one does.

DOMA did NOT dictate the terms of marriage to the states, did not compel states to recognize only man-woman marriage, and did not prohibit states from making their own determinations about marriage. Nowhere does the Federal government itself issue or deny marriage licenses. The only thing DOMA did was establish the terms of marriage recognized by the Federal government itself, only for the federal purposes, as involving a man and woman, what this country has recognized for its entire history, and what has been recognized by societies the world over throughout mankind's existence.

Furthermore, nowhere in any "rights" is there any sort of legitimate expectation that the government recognize any relationship as entitled to recognition and benefits under federal law. "Rights" specifically deal with the entitlement to individual of individual freedoms that are unalienable, engaged independently of others, and not to have their chosen associations recognized.

The 5th Amendment "due process" only provides the right and assurance that "no person ... shall be deprived of life, liberty, or property, without due process of law". Unfortunately, the legislative process of the Congress, is in fact "due process of law", provided that it does engage in any sort of bill of attainder. That law has recognized marriage to be between a man and woman. To deny the Congress has the authority to recognize what marriage is, particularly only for federal purposes, is to deny that the federal government may stipulate any terms for the exercise of its own authority, even taxation.


For the majority to make the decision that it did, it not only had to recognize marriage to be something else than it has been recognized to be over this country's entire history, something that has never been established by law, and has been recognized otherwise recognized by Congress!. But also the Court's action has to deny Separation of Powers and Congress's own authority established by the Constitution to write statute only applicable to federal process, the most basic authority of Congress!

What SCOTUS has claimed under "rights" and 'due process" is an authority it does not have, to re-write law and the meaning of tersm, to redefine rights, and also redefine due process itself.

What has occurred, by its own creation, not by our creation of it, as recognized by Scalia, is a "black-robed supremacy", above the law, above the Constitution, and above Congress and the Executive, a dictatorial supremacy nowhere supported by the Constitution. This is not the country the founders intended.

Those of you who are gay marriage proponents, should really pause before applauding this corrupt decision, as it leads to a form of government that no free people want.
 

Trip

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"dog and pony show" is the idiom for which you were looking.

Ah, you're correct. My mistake.

BTW, I agree with Scalia. SSM supporters ought to be patient and achieve a clean victory that isn't a mere end run around our legal system.

How can any sort of "clean victory" be achieved, when the path to victory is always by government fiat from either the Legislative, Executive and Judicial branches, and invariably involving the corruption of a whole array of terms, from "equal protection", to "due process", to "full faith and credit", to "rights" themselves?

We saw the same fiat from the Executive and Legislative branches in California, denying Prop 8, despite the fact it was duly added to the California constitution. How the people might not have standing in order to challenge the State government's action, when the people created the amendment to the Constitution, is incredible. It leaves the people unable to direct the terms of their own constitution, and subjects the Constitution only to dictate by those same Legislative, Judicial, and Executive branches, the last of whom has an obligation to defend that amendment.


As recognized by Scalia in his dissent regarding DOMA, “The Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
 

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And I see Scalia as attempting a highly technical diversion from the true issue.

Congress and the President adopted an Unconstitutional law that took this long to be challenged. THAT is when the Federal government over-stepped and attempted to control the definition of marriage. It was not for the Federal Government to decide with DOMA.

The Supreme Court strikes down laws as Unconstitutional on a sadly routine basis, sad because I believe the Lawmakers know the law won't stand-up to scrutiny but pass it anyway to appease the 'low-information' citizens they represent in three dot Oklahoma.

The strike down of DOMA doesn't automatically end state constitution amendments, the prop 8 decision doesn't either- though it signals the way things could go at the Supreme Court level as each state anti-SSM/'defense' of 'traditional' marriage amendments.

Laws are made or broken by dancing on the head of a pin with the Devil... but Scalia is attempting to dancing with himself to only his own amusement. And he can't dance wharf spit... :doh
 

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BTW, I agree with Scalia. SSM supporters ought to be patient and achieve a clean victory that isn't a mere end run around our legal system.

Just like the little black kids who were being forced to go to inferior schools should have waited, yes?
 

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Not defending DOMA is one of the few things that this administration has done right.

Now we just have to wait for a Loving-type case to demonstrate specific individual injury so that we can toss all of the state bans.
 

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I'm not troubled by the final decision, but I find myself agreeing with Scalia... it's a dirty case.... they were gaming the system


what is it with our Attorney Generals lately? we seem to have a had a few real corrupt assholes in that position.. Holder, Gonzales, Ashcroft, Reno...
 

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Not defending DOMA is one of the few things that this administration has done right.

Now we just have to wait for a Loving-type case to demonstrate specific individual injury so that we can toss all of the state bans.

deciding not to defend it is one thing... deciding to take the case to SCOTUS when you have vacated the defense and joined the plaintiff is quite another.
if these facts Scalia bring forth are true, the case should have never been heard at all.
 

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I think the SCOTUS should have just ended the damn argument and made it illegal to deny marriage to two individuals of legal age and ability to consent, regardless of what gender they are. Hell it was good enough for interracial marriage, which was only fully legal in the United States in 1967, just over fourty five years ago.

Can you believe that? Just 40 odd years ago people were talking about interracial marriage as a sin against God and everything good in the world, talking about how the sacredness of marriage would be forever destroyed. And it was all a bunch of ****, just like all the things said about gay marriage.

Screw waiting, in 2000 Alabama finally voted to repeal its old laws against interracial marriage which were unenforceable since the SCOTUS decision. Do you know what the vote was? 60% in favor of repeal, 40% against. Nearly 526,000 voted to keep the state law making it illegal to marry someone of another race, in 2000, 13 years ago. And that was after the SCOTUS destroyed the barrier for interracial marriage and people were forced to acknowledge and see that it was harmless, think of what that vote may have been if people were still allowed to continue in their hateful ways? If they had never been forced to see how wrong they were?

http://www.nytimes.com/2000/11/12/weekinreview/november-5-11-marry-at-will.html

Waiting be damned, you'll be waiting forever because some people just aren't going to change their prejudice and intolerant opinions, and why should some wait for their rights because some intolerant asshole has a problem with it? No, **** that, intolerance and prejudice has no value whatsoever and while you can be intolerant and prejudice all you want, you should have no power whatsoever to keep someone from their rights.
 

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I think the SCOTUS should have just ended the damn argument and made it illegal to deny marriage to two individuals of legal age and ability to consent, regardless of what gender they are. Hell it was good enough for interracial marriage, which was only fully legal in the United States in 1967, just over fourty five years ago.

They wanted to avoid a Roe v Wade effect.


Which is to say, the Supreme Court of the United States, the body that we grant the power to say what the Constitution is, the last line of defense for our Constitutional rights, the supreme arbiters of Constitutional Law and the body of men and women devoted to the care of that near sacrosanct document...

....couldn't have cared less what the Constitution had to say yea or nay. It was all about the political appearance.
 

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I think the SCOTUS should have just ended the damn argument and made it illegal to deny marriage to two individuals of legal age and ability to consent, regardless of what gender they are. Hell it was good enough for interracial marriage, which was only fully legal in the United States in 1967, just over fourty five years ago.

Can you believe that? Just 40 odd years ago people were talking about interracial marriage as a sin against God and everything good in the world, talking about how the sacredness of marriage would be forever destroyed. And it was all a bunch of ****, just like all the things said about gay marriage.

Screw waiting, in 2000 Alabama finally voted to repeal its old laws against interracial marriage which were unenforceable since the SCOTUS decision. Do you know what the vote was? 60% in favor of repeal, 40% against. Nearly 526,000 voted to keep the state law making it illegal to marry someone of another race, in 2000, 13 years ago. And that was after the SCOTUS destroyed the barrier for interracial marriage and people were forced to acknowledge and see that it was harmless, think of what that vote may have been if people were still allowed to continue in their hateful ways? If they had never been forced to see how wrong they were?

November 5-11 - Marry at Will - NYTimes.com

Waiting be damned, you'll be waiting forever because some people just aren't going to change their prejudice and intolerant opinions, and why should some wait for their rights because some intolerant asshole has a problem with it? No, **** that, intolerance and prejudice has no value whatsoever and while you can be intolerant and prejudice all you want, you should have no power whatsoever to keep someone from their rights.

Sherlock_Damn_straight.jpg
 

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RELEVANT SCALIA OPINION IN U.S. v WINDSOR


Scalia (p. 36-37)

Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? The answer lies at the heart of the jurisdictional portion of today's opinion, where a single sentence lays bare the majority's vision of our role. The Court says that we have the power to decide this case because if we did not, then our "primary role in determining the constitutionality of a law" (at least one that "has inflicted real injury on a plaintiff ") would "become only secondary to the President's." Ante, at 12. But wait, the reader wonders--Windsor won below, and so cured her injury, and the President was glad to see it. 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." Ibid. (internal quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere "primary" in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of "primary" power, and so created branches of government that would be "perfectly coordinate by the terms of their common commission," none of which branches could "pretend to an exclusive or superior right of settling the boundaries between their respective powers." The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of "greater intrinsic value" or "stamped with the authority of more enlightened patrons of liberty" than a government of separate and coordinate powers. Id., No. 47, at 301.

For this reason we are quite forbidden to say what the law is whenever (as today's opinion asserts) " 'an Act of Congress is alleged to conflict with the Constitution.' "Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The "judicial Power" is not, as the majority believes, the power " 'to say what the law is,' " ibid., giving the Supreme Court the "primary role in determining the constitutionality of laws." The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.


Scalia (p 39):


"What the petitioner United States asks us to do in this case before us is exactly what the respondent Windsor asks us to do: not provide relief from the judgment below but to say that the judgment was correct. And the same was true of the Court of Appeals. Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgement of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings should have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.

We have never before agreed to speak-to "say what the law is" - where there is no controversy before us. In more than two centuries that this Court has existed as an institution, we never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question's answer. The United States reluctantly conceded that at oral argument."

Hiya Trip :2wave: I would be willing to bet that they are looking at the South African Constitution.

Although I do find it quite amusing how the left has nothing to say about that Process with the Lower Court. Wherein at any other time they are always about being PC correct and always about that Process with the Rule of law. Now that the system was gamed.

They don't have to much to say about that. Nor even about Kennedys own hypocrisy over Judicial Activism.

One thing is clear.....we need to stop the Lifetime appointments. Any Judges over the age of 65 need to be Psychologically Evaluated every 3 years. Physicals Every year. Make sure these Ole Timers are still holding those faculties. Any Health Conditions that affect their mentality, thinking process needs to be given to the public. Moreover don't let us catch one of them lying about their health or mental state of being. Should be auto for grounds on Dismissal.

Also they should hear it from the people. Always.....wherever they go. Whether they want to or like it. Or not!

In addition to this problem.....anyone placed on the Court and in Justice by Obama needs to be driven out of Government and his Appointments to the SCOTUS, need to be removed from the bench. At all costs.
 

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Seems like sour grapes to me. Unlike Prop 8 they were allowed to present their case and defend their stand to the best of their ability. They simply could not make a good case for their prejudice. Religious moral values really do not count. There is no other place where law requires civil partnership contracts to consist of opposite genders. Since the contract itself doesn't even speak of sexual activity requirements the entire basis for the argument against gay marriage was pointless anyway as marriage is not a requirement for sexual activity which is what the bible supposedly speaks against anyway.

The whole idea of banning gay marriage doesn't even accomplish the goals of restricting sexual activity between the genders which is what this all was about anyway. No one actually cares if two people of the same gender share finances, live together, take care of children, make legal decisions for each other, or have some civil method for dissolving their partnership. All you have left when you eliminate the government things is sex, and marriage does not mean sexual activity. The only case for traditional marriage is the idea that sexual activity is somehow consecrated by god through a civil union. But since the civil union and the union of the church are technically two different things even in straight marriage the entire argument falls apart. Since government does not even involve itself anymore in consentual sexual activity between unmarried adults anymore now that sodomy laws have taken a blow the whole thing simply becomes a matter of civil union rights to a partnership contract.

The supreme court was correct in striking it down, and it seems like people are recognizing it removed a huge hurdle in the spoiled hatred of gay marriage which really boils down to a selfish game of keep away with the gays because there is little left for the homophobes to grasp onto.
 

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The overall issue, and gross problem with the U.S v Windsor opinion, even as stated by Scalia, is the issue of Separation of Powers.

Undeniably the U.S. Congress has the authority to do what was done in DOMA. If the U.S. Congress does not have authority to write Federal Laws applicable solely to Federal process, then no one does.

DOMA did NOT dictate the terms of marriage to the states, did not compel states to recognize only man-woman marriage, and did not prohibit states from making their own determinations about marriage. Nowhere does the Federal government itself issue or deny marriage licenses. The only thing DOMA did was establish the terms of marriage recognized by the Federal government itself, only for the federal purposes, as involving a man and woman, what this country has recognized for its entire history, and what has been recognized by societies the world over throughout mankind's existence.

Furthermore, nowhere in any "rights" is there any sort of legitimate expectation that the government recognize any relationship as entitled to recognition and benefits under federal law. "Rights" specifically deal with the entitlement to individual of individual freedoms that are unalienable, engaged independently of others, and not to have their chosen associations recognized.

The 5th Amendment "due process" only provides the right and assurance that "no person ... shall be deprived of life, liberty, or property, without due process of law". Unfortunately, the legislative process of the Congress, is in fact "due process of law", provided that it does engage in any sort of bill of attainder. That law has recognized marriage to be between a man and woman. To deny the Congress has the authority to recognize what marriage is, particularly only for federal purposes, is to deny that the federal government may stipulate any terms for the exercise of its own authority, even taxation.


For the majority to make the decision that it did, it not only had to recognize marriage to be something else than it has been recognized to be over this country's entire history, something that has never been established by law, and has been recognized otherwise recognized by Congress!. But also the Court's action has to deny Separation of Powers and Congress's own authority established by the Constitution to write statute only applicable to federal process, the most basic authority of Congress!

What SCOTUS has claimed under "rights" and 'due process" is an authority it does not have, to re-write law and the meaning of tersm, to redefine rights, and also redefine due process itself.

What has occurred, by its own creation, not by our creation of it, as recognized by Scalia, is a "black-robed supremacy", above the law, above the Constitution, and above Congress and the Executive, a dictatorial supremacy nowhere supported by the Constitution. This is not the country the founders intended.

Those of you who are gay marriage proponents, should really pause before applauding this corrupt decision, as it leads to a form of government that no free people want.

Here is some on Kennedy and another saying he never made clear his holding. He never stated why he was striking down DOMA.

It’s important to point out that he directs most of his rage at the five-justice majority, not at proponents of gay marriage, or the institution itself. He’s surprisingly OK with ballot initiatives and laws that have approved gay marriage. Scalia doesn’t share the morals of gay marriage supporters, but he is willing to live and let live. This is quite lovely:

Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some … are offset by victories in other places for others.

Then Scalia goes on to accuse the court of taking away from We the People the chance to continue this debate over marriage. But to do that, he has to skip ahead to a future ruling in which the court declares state bans on gay marriage unconstitutional throughout the land. Scalia says this is inevitable, and he shows why by crossing out “DOMA” and substituting “state law” in paragraphs from Kennedy that he reproduces. Look, I hope Scalia is right about how this will turn out. But it matters that the eventuality he predicts hasn’t happened yet.

Kennedy didn’t make entirely clear the basis for his holding. It’s about equal protection under the law, which is rooted in the court’s cases about the 14th Amendment, except Kennedy talked about the Fifth Amendment (which is where the right to not be deprived of liberty without due process comes from). Kennedy also didn’t make clear whether he was striking down DOMA because it failed the rational basis test—Congress had no good reason for it—or because it failed to pass the higher bar of heightened scrutiny.

Scalia wants to show that it’s possible to oppose gay marriage without hating gay people, accusing the court of turning all opponents into “enemies of the human race.”

And to go back to DOMA, what does the Obama administration do next? The court’s ruling is limited to gay couples who live in states that recognize their marriages as legal. But won’t there be pressure on the administration to extend federal benefits to the couple who gets married legally in New York and then moves to New Jersey or Nebraska?.....snip~

Scalia’s DOMA dissent: What the justice gets right and wrong. - Slate Magazine
 

Slyfox696

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what is it with our Attorney Generals lately? we seem to have a had a few real corrupt assholes in that position.. Holder, Gonzales, Ashcroft, Reno...
Yes, who would have ever thought a lawyer in a position of power would act in a distasteful manner...

;)
 

calamity

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Scalia and the OP have made their feelings about gays quite clear. Good to know they are outnumbered.
 

MMC

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They wanted to avoid a Roe v Wade effect.


Which is to say, the Supreme Court of the United States, the body that we grant the power to say what the Constitution is, the last line of defense for our Constitutional rights, the supreme arbiters of Constitutional Law and the body of men and women devoted to the care of that near sacrosanct document...

....couldn't have cared less what the Constitution had to say yea or nay. It was all about the political appearance.

Heya CPW. :2wave: At least Scalia didn't go Emotional like Alito did. His whole defense was nothing but an Emotional Rant. Although.....myself I don't find this as any shattering news. Alito himself says he is a passionate man. He just hasn't been able to discern the difference of being touchy feely as opposed to being a bit emotional.

Entry 22: Justice Alito’s defense of DOMA is entirely emotional.

Alito took a different tack. He said that some people think that gay marriage undermines heterosexual marriage. He doesn’t say how, and I don’t understand how. If it’s true, does this mean that heterosexual marriage undermines same-sex marriage? Does Alito think that straight people will become gay as a result of the invalidation of DOMA? Or does he hanker for the time when gay or lesbian people married “straights” in order to conceal their true sexual identity? Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essen*tially the solemnizing of a comprehensive, exclusive, per*manent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.....snip~

Supreme Court and DOMA: Justice Alito’s defense is all emotion. - Slate Magazine
 

radcen

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The facts demonstrate that the recent DOMA case, U.S. v Windsor, was nothing but a corrupt hose and pony show that SCOTUS did not have the jurisdiction to hear, and was resolved two courts below the Supreme Court. The fact that the Supreme Court was acting in disregard of the Constitution, and long passed its legitimate authority is was the motivation behind Justice Scalia's scathing dissent.
How can the SC not have the jurisdiction to hear a case? Parties on one side or the other either keep appealing or they don't.
 

Thrilla

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How can the SC not have the jurisdiction to hear a case? Parties on one side or the other either keep appealing or they don't.

the conflict between the parties was remedied before it went to SCOTUS... there was no conflict for the top appeals court to resolve.
the case was brought forth to SCOTUS to push a policy agenda, not to resolve a conflict, not to seek remedy.

in short, there was no " one side or the other" .. they were both on the same side.

IMO, the final ruling was good.. but it was a corrupt and unethical method used to achieve that result.
 

ChuckBerry

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Just like the little black kids who were being forced to go to inferior schools should have waited, yes?

Your consistent tendency to use emotional invective in place of actually debating on this site is nothing short of breathtaking. That someone who clearly doesn't understand the very purpose of this site has been given the position of moderator is befuddling to say the least.
 

radcen

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the conflict between the parties was remedied before it went to SCOTUS... there was no conflict for the top appeals court to resolve.
the case was brought forth to SCOTUS to push a policy agenda, not to resolve a conflict, not to seek remedy.

in short, there was no " one side or the other" .. they were both on the same side.

IMO, the final ruling was good.. but it was a corrupt and unethical method used to achieve that result.

They could have refused to hear it. My quibble is with the use of the word "jurisdiction".
 
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