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

[Thrilla]

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

aye.. they should have refused to hear it.... there was no conflict to resolve, no wrongs to right, no damages for anyone to appeal... there simply was no case anymore.

does SCOTUS have jurisdiction to hear cases that were successfully resolved, according to both involved parties ,in lower courts?... one would think not... one would think the matter was settled.

unless i'm missing something here, I can't seem find a reason for SCOTUS to hear the case at all... there were simply no injured parties.
( that's not to say there wasn't in other DOMA cases, though)

 

[rathi]

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.

Its entirely accurate. Brown vs Board of education eliminated legal segregation in schools using an "end run around our legal system" a full decade for the civil rights act. If you feel that its improper for courts to rule against discrimination before the legislature has acted, that requires condemning Brown as well as Windsor.

 

[Thrilla]

Its entirely accurate. Brown vs Board of education eliminated legal segregation in schools using an "end run around our legal system" a full decade for the civil rights act. If you feel that its improper for courts to rule against discrimination before the legislature has acted, that requires condemning Brown as well as Windsor.

there's a world of difference between those cases...

i'm curious, what "end run " do you see in Brown?

 

[rathi]

there's a world of difference between those cases...

i'm curious, what "end run " do you see in Brown?

I don't, I was simply using the same language as Chuck Berry. I personally consider courts upholding peoples rights against the wishes of a legislative majority to be there most important function.

 

[Trip]

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

Wrong.

This isn't about "feelings about gays" anywhere in the OP.


This is about the rule of law, and the Constitution, but we do appreciate the tacit admission that your own activism, abuse of the Constitution, and support of a corrupt DOJ and judiciary, are all about your "feelings about gays".

 

[Trip]

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.

There was no jurisdiction to hear the case, because the case was resolved two courts below the S.C., and there no longer was an issue to resolve. It is a fundamental of Constitutional Law, that even when there is still a gripe, which there no longer was by either party, if the court cannot remedy that gripe, then then the court does not hear the case.

There was no longer an issue at all, the plaintiff had been made whole.

There was nothing for the parties to appeal, not even the DOJ, which was not appealing having returned federal taxes to "Windsor", and had ended the case by doing so.

Also the Supreme Court had no jurisdiction to say that the Congress cannot make law about government process alone. That is Congress' most fundamental authority authority!

There is no 'right' to not be affected by Congressional law, nor taxation. There is no "right" to have gay marriage recognized by the federal government, nor any "rights' violated in the federal government recognizing marriage to be between a man and woman, despite hoe Kennedy at all phrased their bitter majority opinion.

In fact, as recognized by legal scholars, Kennedy's Majority opinion really did not offer any legal point at all. These comments from legal scholars critical of cover the gamut:

• “He doesn’t do any constitutional analysis or equal protection analysis.”
• “There’s no parameters, no objective analysis, no guidance as to how to apply this other than if you use enough horrible words about people who don’t agree with same-sex marriage, you win….He resorts to, essentially, name calling.”
• "the decision doesn’t definitively resolve many of the key arguments opponents of same-sex marriage put forward."
• “It’s not addressing the question of whether there are any interests a state could put forth that would be sufficient to sustain” a ban on same-sex marriage."
• “It doesn’t address claims that marriage has historically been limited to a man and a woman…."

 

[calamity]

Wrong.

This isn't about "feelings about gays" anywhere in the OP.


This is about the rule of law, and the Constitution, but we do appreciate the tacit admission that your own activism, abuse of the Constitution, and support of a corrupt DOJ and judiciary, are all about your "feelings about gays".

nonsense. If it was about the constitution, then there would be no doubt that gays have the same right to marry as straights.

 

[Trip]

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

What about the violation of rights of others made by busing?

Do you just forget the freedom of assembly, otherwise known as freedom of association, in the 1st Amendment?

So those people have no rights, and can be compelled to go to other schools which may or may not be inferior, all to promote an idea of integration, which is nowhere in the Constitution.

It is now 59 years since Brown v Board of Education, and the problems have not really changed. All this abuse of the Constitution and individual rights still has inner city schools segregated by choice. The problem is inferior schools is the result of the inferior educational system, as well as the embrace in some cultures of an ideology hostile to education, and not segregation itself.

Gays being denied marriage has nothing whatsoever to do with the issues blacks have faced in this country.

 

[Trip]

nonsense. If it was about the constitution, then there would be no doubt that gays have the same right to marry as straights.

Even scholars recognized that there was nothing in the majority opinion about the Constitution! Read the comments from those scholars I posted previously. While referencing the 5th amdnement "due process" there is not a due process argument, and the Majority does not advance one. Neither is DOMA involving equal protection, and the majority certainly did not couch its opinion in terms of equal protection.

If this was about the Constitution, then the majority would have recognized that under Separation of Powers, that Congress was entirely within the scope of its legitimate constitutional authority to enact DOMA.

Indeed Scalia even references the "majority" of Congress that voted for DOMA, and how the court is assuming the same enmity to the human race by them as well, despite the fact it was passed by overwhelming majorities in each house, 85–14 in the Senate, and 342–67 in the House, and signed by Clinton.

Not only that, but Democratic Senators voted for the bill 32 to 14, and Democratic Representatives voted for it 118 to 65.

DOMA wasn't a partisan issue, and wasn't a violation of any rights. DOMA was a rather ordinary bill, and wasn't any reach at all by the Congress, and did not 'reach into' any territory not its own.

In Contrast the Court under Kennedy has made itself the Supreme Arbiter of 300 million people. has acted without any jurisdiction to do so, without any legitimate issue being before the Court, and did so from a decided emotional perspective which many legal commentators have recognized to be an emotionally and judicially "immature" opinion, certainly unsupported by Constitutional reference. .


The fact is that the majority opinion was only an emotional argument, with that argument unsupported by the Constitution, and the Courts action and process itself unsupportable by that Document. In fact you will search Kennedy's opinion vain for clear constitutional reasoning; it ain't there. It was entirely an emotional argument made by the majority in which they ascribe all who stood against the decision as having having gay animus.

Scalia specifically takes issue with Kennedy's, and the other four, emotionalism and utter lack of judicial approach in stating:

"Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament."​

 

[CaptainCourtesy]

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.

Moderator's Warning:

Knock off the personal attacks, or there will be further consequences.

 

[Trip]

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.

But we DO NOT, under the Constitution, grant the Court with the power "to say what the Constitut9ion is". Judicial review is not the the singular power to say what the constitution is, any more so than it is a final word on that constitution; it's not! Not only does Scalia take issue with the Court being able to say "what the Constitution is", but also indicates it is not even the Court's authority to "say what the law is", indicating:

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.​

Not only is the Court's power not to "say what the law is" but it has no overall authority to "say what the Constitution is", particulary not when the Court does not have any issue before it, as is the case with the DOMA decision. The Court acted without any constitutional authority to act all!

 

[jwzg]

The problem is that DOMA was the law of the land which the DOJ is tasked to defend, even if the president disagrees. It is up not up to the DOJ to determine the constitutionality of a law. It is the responsibility of the executive branch to carry out the law and the responsibility of the supreme court to determine constitutionality. If you take this little boondoggle to its logical conclusion, then the DOJ could just decide not to enforce any law the president does not want enforced. Oh, wait! We already do that. My bad. Do you really want to keep going down that road?

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.

 

[Hard Truth]

I am glad about the decisions, but on general principal, I think that in the Prop. 8 case the defenders of the ballot measure should not have been denied standing. That sets a bad precedent and will make it harder for anyone to defend a ballot measure that the political establishment does not like. Prop. 8 could, and should, have been overturned on another basis, as it was in the state courts.

 

[Trip]

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...

I am perplexed how anyone who calls themselves a Libertarian could not be extremely troubled by the "final decision", particularly since "black-robed" dictatorship was nowhere the vision of this country, and does not protect individual liberties.

The problem is not with the Constitution, nor DOMA, but the fact that today's Libertarian libertine outlook really isn't founded in the Constitution at all, much less this nation's founding philosophy, and imagines that it's reasonable that different terms of self-gratification should all be recognized as the same thing, marriage, when Marriage isn't recognized at all as a result of any self gratification, but rather benefit to society.

Gay unions are not the same benefit to society as Marriage.

 

[CaptainCourtesy]

Gay unions are not the same benefit to society as Marriage.

I think it has been explained to you REPEATEDLY, that you are incorrect about this, and gay unions have the same benefit to society as heterosexual unions, based on the legal purpose of marriage. Now, I don't expect you to recognize or admit that you are incorrect about this, but it doesn't alter the fact that you are.

 

[Helix]

The problem is that DOMA was the law of the land which the DOJ is tasked to defend, even if the president disagrees. It is up not up to the DOJ to determine the constitutionality of a law. It is the responsibility of the executive branch to carry out the law and the responsibility of the supreme court to determine constitutionality. If you take this little boondoggle to its logical conclusion, then the DOJ could just decide not to enforce any law the president does not want enforced. Oh, wait! We already do that. My bad. Do you really want to keep going down that road?

the action is not without precedent, here are a few recent cases :

Bush II : Justice Department Refuses to Defend Congress in Legal Battle Over Law Censoring Marijuana Policy Ads | American Civil Liberties Union

Clinton : Context of 'February 1996: Clinton Administration Refuses to Challenge Congress via Signing Statements'

Bush I : Work on Rights Might Illuminate Roberts's Views

as an interesting aside, John Roberts himself played a role in this one.

the precedence goes back even further, but you get the picture.



here is a justice department brief on it :

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

letter from the AG explaining the recent refusal to defend the unconstitutional policy :

USDOJ: Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act


to sum, i'd say the administration was well within its rights to refuse to defend this unconstitutional policy.

 

[Trip]

I think it has been explained to you REPEATEDLY, that you are incorrect about this, and gay unions have the same benefit to society as heterosexual unions, based on the legal purpose of marriage. Now, I don't expect you to recognize or admit that you are incorrect about this, but it doesn't alter the fact that you are.

What you "explained" was only your own rabid leftist ideology in disregard of fact, which was no surprise whatsoever.

Unfortunately the Fact of human biology is not at all altered by your ideology, and societies the world over have zero interest whatsoever in recognizing and rewarding what gratifies people.

Societies do have an interest in recognizing and rewarding how that society is populated and promoted, which is entirely by heterosexual reproductive process, thereby establishing the interest of society in promoting the stable heterosexual union known as Marriage.

The union of two gay individuals cannot possibly produce offspring, which is why gay unions will never be the equivalent to societies of what heterosexual unions provide - the backbone of every society throughout history.

Apparently this was explained to you long ago, in Sex Ed class, and just didn't 'take'.

 

[Trip]

the action is not without precedent, here are a few recent cases :

Bush II : Justice Department Refuses to Defend Congress in Legal Battle Over Law Censoring Marijuana Policy Ads | American Civil Liberties Union

Clinton : Context of 'February 1996: Clinton Administration Refuses to Challenge Congress via Signing Statements'

Bush I : Work on Rights Might Illuminate Roberts's Views

as an interesting aside, John Roberts himself played a role in this one.

the precedence goes back even further, but you get the picture.



here is a justice department brief on it :

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

letter from the AG explaining the recent refusal to defend the unconstitutional policy :

USDOJ: Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act


to sum, i'd say the administration was well within its rights to refuse to defend this unconstitutional policy.

I'm pretty certain that JWZG was talkign about the DOJ being "tasked to defend" the law, wihin the Context of its actionsin this case, manipulating both sides of the court position, to advance the case to the Supreme Court.

None of those cases you cite at all resemble the DOJ's corrupt handling of this, and there is no such precedent for how DOMA was handled.

In fact it could be easily argued that the handling of U.S. v Windsor is further cause to impeach Holder.

 

[Helix]

I'm pretty certain that JWZG was talkign about the DOJ being "tasked to defend" the law, wihin the Context of its actionsin this case, manipulating both sides of the court position, to advance the case to the Supreme Court.

None of those cases you cite at all resemble the DOJ's corrupt handling of this, and there is no such precedent for how DOMA was handled.

In fact it could be easily argued that the handling of U.S. v Windsor is further cause to impeach Holder.

you're certainly a fast reader.

as for the rest, thanks for sharing your opinion. i disagree. i can probably find precedence back to the early twentieth century if i took the time to look, but nah. i've fairly completely outlined the precedence already.

denying federal recognition of legal marriage based on sexual orientation is about as clear cut as unconstitutional issues get. that has now been confirmed by the court, as well, and rightly so.

 

[CaptainCourtesy]

What you "explained" was only your own rabid leftist ideology in disregard of fact, which was no surprise whatsoever.

No, what I explained were facts that your own rabid conservative ideology refused to accept as it demolished your position.

Unfortunately the Fact of human biology is not at all altered by your ideology, and societies the world over have zero interest whatsoever in recognizing and rewarding what gratifies people.

Fortunately, procreation has zero to do with the legalities of marriage, so your argument is STILL wrong and irrelevant.

Societies do have an interest in recognizing and rewarding how that society is populated and promoted, which is entirely by heterosexual reproductive process, thereby establishing the interest of society in promoting the stable heterosexual union known as Marriage.

Societies have an interest in recognizing and rewarding how a society rears children... and since society never places legal ramifications on whether one procreates or not, we know that procreation is not the issue.

The union of two gay individuals cannot possibly produce offspring, which is why gay unions will never be the equivalent to societies of what heterosexual unions provide - the backbone of every society throughout history.

All of which is irrelevant and demonstrated by there being no legal ramifications for not procreating.

Apparently this was explained to you long ago, in Sex Ed class, and just didn't 'take'.

Apparently you STILL don't understand the context of the argument, which is why you keep losing it.

 

[Trip]

you're certainly a fast reader.

as for the rest, thanks for sharing your opinion. i disagree. i can probably find precedence back to the early twentieth century if i took the time to look, but nah. i've fairly completely outlined the precedence already.

denying federal recognition of legal marriage based on sexual orientation is about as clear cut as unconstitutional issues get. that has now been confirmed by the court, as well, and rightly so.

Opinion is quite different than "fact you disagree with, and don't like". And fact that you didn't take the time to look for references, because they do exist, does not alter the fact that your previous cited references do not resemble what occurred presently under the Court's action regarding DOMA. None of them involve the DOJ playing both sides of the fence to promote the case addvancing to SCUTOS so that scotus might issue a precedential verdict based on an issue it has no jurisdiction over, and no authority to deny Congress.

Another Fact is that the Constitution does not address marriage, at all anywhere, but what it does address, "rights", nowhere includes among those rights the selective pairing of two individuals being a right, much less that the federal government must recognize and award those rights, otherwise it is a denial of rights. Rights are involved with the individual, not groups, and have nothing whatsoever to do with outcome, or recognition.

The only way such a claim might at all be "clear cut" is for one to have as thoroughly corrupted the Constitution and its terms as much as they desire to corrupt the term "marriage". Given this, it's not surprising at all that the majority DOMA opinion was devoid of real Constitutional reference and argument, and replete with lots of hand-waving and emotionally-driven dictate of morality, all while it hypocritically denigrates the supposed morality-based rejection of gay marriage.

 

[Linc]

Do you think the timing of the DOMA ruling was meant to overshadow/blunt/mute the VRA decision? As well, that DOMA wil reenergize that GOP wing supporting DOMA? In the long run, I expect both decisions to help the GOP with votes. What is next on their plate?

Opinion is quite different than "fact you disagree with, and don't like". And fact that you didn't take the time to look for references, because they do exist, does not alter the fact that your previous cited references do not resemble what occurred presently under the Court's action regarding DOMA. None of them involve the DOJ playing both sides of the fence to promote the case addvancing to SCUTOS so that scotus might issue a precedential verdict based on an issue it has no jurisdiction over, and no authority to deny Congress.

Another Fact is that the Constitution does not address marriage, at all anywhere, but what it does address, "rights", nowhere includes among those rights the selective pairing of two individuals being a right, much less that the federal government must recognize and award those rights, otherwise it is a denial of rights. Rights are involved with the individual, not groups, and have nothing whatsoever to do with outcome, or recognition.

The only way such a claim might at all be "clear cut" is for one to have as thoroughly corrupted the Constitution and its terms as much as they desire to corrupt the term "marriage". Given this, it's not surprising at all that the majority DOMA opinion was devoid of real Constitutional reference and argument, and replete with lots of hand-waving and emotionally-driven dictate of morality, all while it hypocritically denigrates the supposed morality-based rejection of gay marriage.

 

[Helix]

Opinion is quite different than "fact you disagree with, and don't like". And fact that you didn't take the time to look for references, because they do exist, does not alter the fact that your previous cited references do not resemble what occurred presently under the Court's action regarding DOMA. None of them involve the DOJ playing both sides of the fence to promote the case addvancing to SCUTOS so that scotus might issue a precedential verdict based on an issue it has no jurisdiction over, and no authority to deny Congress.

Another Fact is that the Constitution does not address marriage, at all anywhere, but what it does address, "rights", nowhere includes among those rights the selective pairing of two individuals being a right, much less that the federal government must recognize and award those rights, otherwise it is a denial of rights. Rights are involved with the individual, not groups, and have nothing whatsoever to do with outcome, or recognition.

The only way such a claim might at all be "clear cut" is for one to have as thoroughly corrupted the Constitution and its terms as much as they desire to corrupt the term "marriage". Given this, it's not surprising at all that the majority DOMA opinion was devoid of real Constitutional reference and argument, and replete with lots of hand-waving and emotionally-driven dictate of morality, all while it hypocritically denigrates the supposed morality-based rejection of gay marriage.

it's your opinion that the precedence i cited is not analogous to the current decision not to defend DOMA due to its unconstitutional nature. you're entitled to that opinion, but i disagree with it.

as for the constitutional right to marry, that was established as a basic civil right in Loving v Virginia : Loving v. Virginia - Wikipedia, the free encyclopedia

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

in a couple years, a case analogous to Loving will make its way through the courts, and specific injury caused by the state bans will be demonstrated. when this happens, the anti-gay amendments to state constitutions will be thrown out, as well.

 

[jwzg]

Hmmm, the old "well everyone else did it" argument. That doesn't make it constitutional. As far as I'm concerned, Holder can write all briefs he want's, but for him to outright refuse to uphold a law based on the ideology of his boss is a dangerous road to go down and vests the executive branch with unlimited authority. As I asked earlier: Do we want to keep going down this road?

the action is not without precedent, *here are a few recent cases :




Bush II : Justice Department Refuses to Defend Congress in Legal Battle Over Law Censoring Marijuana Policy Ads | American Civil Liberties Union*




Clinton : Context of 'February 1996: Clinton Administration Refuses to Challenge Congress via Signing Statements'




Bush I : Work on Rights Might Illuminate Roberts's Views




as an interesting aside, John Roberts himself played a role in this one.




the precedence goes back even further, but you get the picture.












here is a justice department brief on it :




PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.




letter from the AG explaining the recent refusal to defend the unconstitutional policy :




USDOJ: Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act








to sum, i'd say the administration was well within its rights to refuse to defend this unconstitutional policy.

Trip, this is exactly to what I was referring. Add Holder's refusal to enforce immigration law, and I wouldn't be against charges being pressed.

I'm pretty certain that JWZG was talkign about the DOJ being "tasked to defend" the law, wihin the Context of its actionsin this case, manipulating both sides of the court position, to advance the case to the Supreme Court.

None of those cases you cite at all resemble the DOJ's corrupt handling of this, and there is no such precedent for how DOMA was handled.

In fact it could be easily argued that the handling of U.S. v Windsor is further cause to impeach Holder.

 

[CriticalThought]

I could sum up this entire thread with two words.

Sore Losers.