[quote]DBCooper wrote:
[quote]jjackkrash wrote:
[quote]Dr. Pangloss wrote:
[quote]jjackkrash wrote:
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Let me ask you a question…
In this quote from Roberts’s dissent, "Understand well what this dissent is about: it is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. "
Why would Roberts abdicate responsibility for making an ultimate decision when it would seem that, at the very least, it is fully proper for the SC to rule on whether or not state recognition of gay marriage is in accordance with the FF&C clause?
Isn’t this the proper role of the SC, making decisions when no agreement exists between the States? If he were writing from the bench of a lower court, I could see his rationale but he’s being asked to decide something that is certainly in his purview as a SC judge.
Edit: I’m struggling to make sense of the Conservative judge’s dissents and the majority opinion reads like a Hallmark card.
“Love, flowers, unicorns, rainbows…
It is so ordered”
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I’ll come back to this, but I don’t have time right this second. I laid out all the equal protection arguments if not in this thread, then in a related one, however, going back and forth with Sex Machine and a few others.
That said, I would have been perfectly fine if the Court decided to not take this case and let the local process run its course some more. I am also a fan of deference and restraint from the high court. I think Roe was decided way too soon as well. I personally thought it was too early for them to accept cert. in this case. Way too soon. But if they take on the issue squarely, then they have to get it right and decide one way or the other what the constitution requires. And I don’t see a very compelling case for the other side.
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You keep citing the Equal Protection Clause as if Justice Kennedy continually referred to it in his decision. The thing is, this isn’t an EPC issue to Kennedy. If it is, he certainly took a roundabout path to get there. He essentially married the EPC to the Due Process Clause (pun intended) to produce the desired result. If that isn’t legislating from the bench, I don’t know what is.
We make like the immediate result, but the fact is that these cases usually end up having just as many ramifications years from now as they do today. Justice Kennedy completely fucking mangles his rationale to the point where I can see this ruling vacated by a future SCOTUS decision at some point.
As I stated earlier, the EPC would have been the better route for Justice Kennedy, but he did not take that route. Certainly not in a way that relies upon anything even approaching case precedent. I’d love to see how the doctrine of stare decisis is applied in light of this decision.
The EPC guarantees equal protection under the law and is applied to fundamental rights. Is marriage a fundamental right, and if so, why? Kennedy has not satisfactorily addressed this, which even supporters of gay marriage would readily admit. Furthermore, IF marriage to a consenting adult is a fundamental right, then strict scrutiny must first be applied by the Court. This is because decades of previous case precedent have established that even when it comes to a fundamental right, the state still has the power to limit such things IF it can show that there is a compelling state interest to do so.
The EPC is typically cited in cases involving discrimination. However, this necessitates that Justice Kennedy first establish that gays are what is called a “suspect” class. A suspect class in this sense refers to any group of people that have long been the target of persecution based on what differentiates them from the rest of society. As of now, I think that gender, race, and age are enough to put someone in a suspect class (women, racial minorities, old people). If one is a member of a suspect class, then laws cannot be created to deny that person a right based on what makes them different. Once it can be shown that someone is a member of a suspect class and that a law denies them a right that others have on the basis of what makes that person “different”, the EPC can be applied. But again, that is only AFTER strict scrutiny has been applied. Strict scrutiny entails three distinct phases/tests, the first of which is the compelling interest test.
Justice Kennedy never established that gays are a “suspect class”, he never applied strict scrutiny, he certainly never investigated the compelling interest aspect. But the big problem is that he never established that gays are part of a suspect class, and quite frankly, I could have argued that fucking point in front of SCOTUS.
You see, when it comes to EPC issues, the strict scrutiny standard is only applied if the law in question potentially violates a fundamental right of a suspect class. Otherwise, the rational basis standard is applied, which places a far less substantial burden on the state to justify such a law.[/quote]
I could be wrong, as I am not a lawyer, however I think Justice Kennedy was careful to not use the EPC as his justification to not make the use of Bob Jones as easy of a leap. The down hill slide to the use of Bob Jones to infringe upon 1st amendment rights being the biggest driving factor behind most Christians vehement fight to prevent gay marriage in the first place. I don’t think it will work however and in 10 years or so you will see churches and Christian universities not allowed to stand behind positions forbidding gay marriage without facing government sanction.
Summary of the decision:
[quote]
The Court found that the IRS was correct in its decision to revoke the tax- exempt status of Bob Jones University and the Goldsboro Christian School. These institutions did not meet the requirement by providing “beneficial and stabilizing influences in community life” to be supported by taxpayers with a special tax status. The schools could not meet this requirement due to their discriminatory policies. The Court declared that racial discrimination in education violated a “fundamental national public policy.” The government may justify a limitation on religious liberties by showing it is necessary to accomplish an “overriding governmental interest.” Prohibiting racial discrimination was such a governmental interest. Hence, the Court found that “not all burdens on religion are unconstitutional.”[/quote]