SCOTUS and Gay Marriage Debate

Discussion in 'Debates & Contests' started by Troianii, Jul 20, 2014.

  1. Troianii

    Troianii Well-Known Member Past Donor

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    Debate Subject: How the Supreme Court will Decide the Issue of Gay Marriage
    Debate Participants: Troianii
    ProgressivePatriot
    Debate Judges: Cubed
    AndrogynousMale
    Mr. Swedish Guy
    Unifier
    upside-down-cake


    I issued an open challenge to a formal debate two months ago. It has been accepted by ProgressivePatriot. We will not debate how the Supreme Court should or should not decide on the issue of gay marriage nationally, but simply how it will. This is a matter of prediction, not personal political views.

    This debate will be reviewed by five judges. The judges are instructed to vote for a winner based on whose arguments they find most convincing, and not on who they hope is making the correct prediction.

    The debate will consist of three rounds. The first round shall be introductory arguments, in which the debaters will lay out briefly (max 300 words) how they will argue their view, and give general introductory statements. The second round shall be the main arguments (max 1000 words), in which the two debaters will lay out their arguments in full, and respond to statements the other made in the introductory round. The third and final round shall be closing statements (max 500 words), in which debaters will make their closing statements. This round is longer than is needed for a simple closing statement, so as to allow the two debaters a chance to respond to the other's remarks in the second round. As a rule, so as to give no advantage to either debater, debater's shall not respond to anything stated by the other in the same round. Debater's shall only be allowed to respond to what the other said in the previous round.

    I wish ProgressivePatriot the best of luck. As a final statement to all judges and viewers: please remember not to post until the two debaters, myself and Progressive Patriot, have issued our closing statements AND the judges have issued their decision on who won the debate. When you do post, please remember that the subject of debate is how SCOTUS will decide the issue, not how they should. This is a matter of predictions only.
     
  2. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    There are two factors that will result in SCOTUS ruling that same sex marriage is a right. First, the makeup of the court:

    Four of the current justices, Ginsburg, Sotomayor, Kagan and Breyer will almost assuredly vote in favor of same sex marriage. Three are a lost cause: Thomas and Scalia , followed closely behind by Alito. So the wild cards are Roberts and especially Kennedy.

    Justice Kennedy wrote the Court's decision on Romer v. Evans on May 20, 1996: An amendment to the Colorado state constitution that would prohibit the recognize gays as a protected class was passed by a referendum. The law was invalidated by the high court.

    Justice Kennedy also wrote the Court's decision on Lawrence v. Texas on Jun 26, 2003 The Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states

    As for Roberts, In 1995 Roberts agreed to help represent the gay rights activists as part of his law firm's pro bono work. The case before the Supreme Court, Romer vs. Evans, dealt with a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing. A 6-3 ruling struck down the initiative.

    Secondly, given the trajectory established by the lower courts, it is likely that state laws banning SSM will be subjected to strict scrutiny at SCOTUS and thus will not stand. Courts apply strict scrutiny when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.
     
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  3. Troianii

    Troianii Well-Known Member Past Donor

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    I shall contend that if SCOTUS takes on a gay marriage case with the current court makeup, and decides the case on actual substance, then it will decide that gay marriage is not a Constitutional right.

    I will briefly cover the judicial philosophies and jurisprudence of justices Ginsburg, Sotomayor, Kagan, Breyer, Thomas, Scalia, and Alito. I will touch on these only briefly because there is little dispute amongst followers of SCOTUS as to how these seven shall vote. Additionally, ProgressivePatriot and myself are in agreement as to how these seven will vote.

    In my argument I will look most closely at Kennedy and Roberts. I believe that both Kennedy and Roberts would hold that gay marriage is not a Constitutional right. I will rely heavily on U.S. v Windsor, particularly for ascertaining Kennedy’s opinion (he wrote the majority opinion in U.S. v Windsor, and so the decision is more indicative of his own views than the joining justices). I will also explain why Kennedy writing the majority opinion in U.S. v Windsor is indicative of court opinion on the matter.

    I find that there is little reason to suspect that Roberts will support gay marriage as a Constitutional right. Most strongly indicative of his views on the matter is his particular emphasis on judicial minimalism. Using statements and decisions, I will succinctly establish Roberts’ judicial minimalism.

    I will also touch loosely on preceding SCOTUS cases regarding gay rights, and I will show how they are so far and away different. Most cases thought related have been about individual liberty. I will briefly note these other cases to illustrate why they are not indicative, and to show why U.S. v Windsor is fundamentally different.
     
  4. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Since we are in agreement on how 7 justices are likely to vote, I will elaborate only on the remaining two, Kennedy and Roberts.

    In the intro, I pointed out that Justice Kennedy wrote the Court's decision on Romer v. Evans [1 ] as well as the Court's decision on Lawrence v. Texas, [ 2] both landmark gay rights cases

    Kennedy is far from hostile to gay rights. In the DOMA decision he wrote:

    “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” [ ] Yes, there is a strong emphasis on state’s rights, but there is also an unmistakable appreciation for the plight of gay people as well. [3]

    As for Roberts, my intro discussed his work on Romer vs. Evans. Yes, he did vote with the minority in Windsor, but in doing so, he “chided both sides for rhetorical excess and refusing to take the other side’s arguments at face value” according to Politico, who hailed him as the courts “chief peacemaker. The point is that he is not a hardened ideologue who cannot see all sides of an issue. [4 ]

    Erwin Chemerinsky, dean of the University of California/Irvine Law School wrote. “I think Roberts wanted to uphold DOMA, but on much milder grounds….In part, that reflects his desire as chief to tone down the rhetoric of his court, but also reflects his own views on the issue.”[5 ]

    While it is hard to predict with certainty how Roberts and Kennedy will vote based on their ideology, writings and voting records, I contend that the issue that will sway one or both of them in favor of marriage equality is strict scrutiny. I believe that the argument in favor of applying the highest level of scrutiny to the issue is compelling, and they are both concerned about their credibility and their legacy-possibly, more so than ideology. Therefor there is a high probability that there will be at least 5 votes for equality.

    I my intro, I also discussed the criteria for the courts application of strict scrutiny [6 ] which would likely be the death knell for state bans on same sex marriage. Here I will focus on the legal issues before the court.

    Getting back to DOMA, the high court did uphold the appeals court ruling on the basis of the 5th amendment’s due process clause as opposed to 14th ‘s equal protection under the law provision and in doing so, found a way to invalidate the section of DOMA that denied federal benefits to same sex married couples, while re-affirming the rights of the states to define marriage.

    However, it’s also important to note what was not said. They never said that no restrictions on the right of states to regulate marriage would ever be placed on them. In fact, there is already precedent that establishes the fact that the right of states to regulate marriage is not absolute. That precedent of course is Loving v. Virginia. In that case, he court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

    Chief Justice Earl Warren scribed the unanimous opinion for the U.S. Supreme Court. In it, he declared that, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” If the highest court in the land defining marriage as one of the “basic civil rights of man” doesn’t qualify marriage as a legal right, I don’t know what would. [7]
    Thus, the application of strict scrutiny based on marriage being a basic right will be hard to get around. The other road to strict scrutiny would be to establish homosexuals as a suspect class. To apply strict scrutiny on the basis of class, the class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.

    It is not a major stretch of the imagination to see how, at some point SCOTUS could view gays in the same light as those racial minorities and declare that same sex marriage is a right as is inter racial marriage today and thus requiring strict scrutiny of any laws denying them equal rights including the right to marry.

    In the Proposition 8 case, Judge Vaughn Walker at the US district court level stated that proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect. Judge Walker characterized the right at issue as "the right to marry", which, he wrote, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", The point here is that Walker was willing to rule on the basis of strict scrutiny. [8]

    And during the proposition 8 hearing at SCOTUS there was this exchange between JUSTICE SOTOMAYOR and Mr Cooper, attorney for the petitioners
    JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits …
    MR. COOPER: Your Honor, I cannot.
    JUSTICE SOTOMAYOR: if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? [9]

    To touch again on Evans v. Romer (1994) — Colorado’s Supreme Court said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2. The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.” Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test. That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.” [10]

    In other words, the SCOTUS has not found gays to be a “suspect class” but arguably they never really said the opposite. When the first marriage case gets to SCOTUS, I believe that only the three most conservative Justices will be willing to fly in the face of all reason and logic and decide that strict scrutiny is not warranted-because, unlike Kennedy and Roberts, all that they care about is ideology.
     
  5. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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  6. Troianii

    Troianii Well-Known Member Past Donor

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    It is a common mistake to categorize judges by their judicial decisions as for or against a certain political issue. Judges are not politicians, and they do not makes decisions based on politics, but on judicial philosophy. The majority of Supreme Court decisions are 9-0, even a lorry load made against the Obama Administration were 9-0, so it would be wrong to categorize SCOTUS judges with political labels. Judges also often make decisions that are against their political preference, because their decisions are based on methods of interpretation, not on personal political views. As such, any suggestion that a judge’s opinions shows him to be for or against “gay rights” should be discarded, because that is not how the court works. The court does not make decisions based on personal political views, but on law and judicial philosophy.

    Romer v. Evans (1996) was actually a quite simple case. The Amendment in question was thus:
    It's really quite simple: the amendment would have prevented homosexuals from being protected against discrimination on the basis of sexual orientation, but would still have allowed heterosexuals to be. It's a pretty open and shut equal protection, but in no way indicative of gay marriage rulings.

    Lawrence v. Texas (2003) was written by Kennedy. Kennedy wrote that, "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.... Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct..." The case was about a Texas law making it a crime for two people of the same sex to engage in intimate sexual conduct, and it was determined that based on the rights of liberty and privacy the law was invalid.

    Windsor v. U.S. (2013) is most indicative of how the court views gay marriage. Windsor struck down DOMA, a federal law which prohibited federal recognition of same sex unions. And was this really pro. v. anti-gay marriage case? Not really. The case revolved around states' rights, which the federal government had violated.

    The decision in Windsor v. US, then, does not support the idea of gay marriage being a constitutionally protected right. Further, if the court did believe that a fundamental right to same sex marriage was being violated, then why wouldn’t the court bother to mention it in this case? Why would it rest on the state’s authority over marriage, and not upon a fundamental Constitutional right to same-sex marriage? It just doesn’t make sense.

    U.S. v. Windsor was written by Kennedy, and Kennedy’s decision relied upon the state of New York’s right to determine its own marriage policy. It was, in fact, New York’s states’ rights that were being violated in this case, and Windsor’s only by extension. If we are going to use court history to find Kennedy’s legal position on marriage, it is that it is the realm of the states, and that the states have the authority to establish marriage policy, not the federal government.

    Windsor can also be used to ascertain Roberts’s legal views on marriage. Interestingly enough, Roberts actually held that, “Congress acted constitutionally in passing the Defense of Marriage Act.” (pg. 1 of dissent, or pg. 31 of total document) I think this is pretty clear cut. The federal government doesn’t have any special privilege over states to violate fundamental Constitutional rights, and if such a right existed, then neither the states nor the federal government could prohibit them, or prohibit recognition of them. So we can pretty clearly see Roberts’s opinion on marriage policy.

    Both the majority opinion written by Kennedy and the dissent written by Roberts clearly outlined that this decision has no significance to the question of whether or not states can ban gay marriages, as Roberts wrote, "I write only to highlight the limits of the majority's holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us - DOMA's constitutionality - but also a question that all agree, and the Court (majority) explicitly acknowledge, is not at issue." (pg. 4 of dissent, 34 of doc) This is in addition to Roberts's belief in the limited role of the Supreme Court.

    I do not feign to have a monopoly on logic and reason, nor that either set of justices do. Rather, I simply hold that the majority of the current court will not hold that there is a fundamental Constitutional right to gay marriage.
     
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  7. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    I will certainly be working on this. Have a good evening
     
  8. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    You say that “It is a common mistake to categorize judges by their judicial decisions and that Judges are not politicians…”, but decide on judicial philosophy.” Except that it’s not really a mistake. True, the court votes most often 9-0, but the second most common outcome is 5-4. Your entire first paragraph contradicts your previous statements and the fact that you agreed that the way 7 of the justices will vote is a forgone conclusion. The predominance of 9-0 votes says little about putting politics aside [1]

    As far as Kennedy and the Romer and the Lawrence cases are concerned, I never intended to present them as an indication of how he would vote on marriage but rather to show that he is not hostile to gay rights in general. Can anyone imagine Scalia, Thomas or Alito taking the same position on these case as did Kennedy?

    Concerning Windsor, I myself pointed out that the majority opinion was in fact a reaffirmation of state’s rights. However, I also pointed out that the court left open the possibility that state’s right to define marriage is not absolute using the precedent of Loving as an example. To this I add that Kennedy has made several impassioned pronouncements regarding the detrimental effect that the denial of marital benefits to parents has on children. If he understood that DOMA harmed children, he most assuredly understands that state mans on marriage harms children in the same way, and I believe that his decision may well turn on the issue of children.

    You ask why the court did not address the issue of whether a fundamental right to same sex marriage was being violated. The answer is, that was not the issue before the court. The majority opinion avoided that because it simply was not necessary to go there in order to invalidate the statute. The high court has a history of acting slowly and cautiously, and avoiding stepping on toes when unnecessary-but step on toes they will at the right time if need be.

    As for Roberts, yes he did say “I also agree with Scalia that Congress acted constitutionally in passing DOMA. …… at that point, had been adopted by every State in our Nation, and every nation in the world”

    Yes, every state and every nation AT THAT POINT. But that ignores the reality that at the point of the ruling, that rational no longer made sense. And to agree with Scalia, a certified homophobe lends no credibility to him whatsoever. It’s kind of a schizophrenic pronouncement because it fly in the face of those who want the states to decide the question ( because they believe that by doing so-many states can hold out against marriage equality longer-while affirming the right of the federal government to decide questions of marriage. This is a disappointing passage which, I’ll admit, I missed and based on it, and his skepticism about judicial activism that you also pointed out-I will downgrade my assessment of Roberts to a more probable “NO” for equality. However, we don’t need Roberts because, I do believe that we have Kennedy.

    Lastly, while you contend that Judges are not politicians, and they do not makes decisions based on politics, but on judicial philosophy, you ignored my entire section on the immutable and unavoidable case for the application of strict scrutiny to state bans on same sex marriage. I maintain that, while Roberts, and to a lesser extent, Kennedy may wish avoid declaring state bans on same sex marriage invalid, they will find it difficult to do so while protecting their credibility and the appearance of following the rule of law. Unless, of course they are in fact political ideologues, but I do think that Kennedy at least will follow the law, and do right by the children.

    1. http://www.slate.com/articles/news_...014_why_are_most_cases_either_9_0_or_5_4.html
     
  9. Troianii

    Troianii Well-Known Member Past Donor

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    Well then we are at least in agreement that there is really only one wild card on the court, Justice Kennedy. I didn't respond to your strict scrutiny claims because there is not strong reason to believe it will be used, nor that it will change the outcome if it is used. That the test is used in no way means that the court will come to a given ruling - your proffered ruling, for example. The judges can decide that yes, this is the test to use, but it passes this test - even if you don't think it does. And, of course, it is up to the judges which test to use to begin with and, to my knowledge, strict scrutiny has never been the test for a case even involving gay rights. Wasn't Romer decided on the principle of non-retrogression?

    When Justice Warren said, in regards to the Loving case that, "Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival", he was referring to an ideation of marriage that excludes gay marriage. It is, first, an idea that marriage comes before sex - an idea actually already becoming quite outdated during his own time. It, second, refers only to heterosexual relations. No rational person would think that Justice Warren there was saying that gay marriage is fundamental to our very existence and survival - it's obvious what he meant there, and in so saying, we can understand what he actually meant when he said marriage is one of the 'basic civil rights of man'. But even if you were right, this wouldn't have any firm bearing on how the current justices would decide.

    I still maintain that if the court wished to establish gay marriage is a right inherent to an amendment in the Constitution, they could have during Windsor. If such a right actually exists, then it was clearly infringed upon by DOMA. Imagine that a case existed where the legal dispute that brought the case up was a dispute between the separate powers of a state and the federal government, but the action in dispute clearly violated an existing Constitutional right (let's say to bear arms). Is it unreasonable to think that the court would bother to mention the individual's right being infringed upon, when it is the most clearcut and most open and shut way to resolve the case? ESPECIALLY when you consider that not mentioning it, in a case like Windsor, would mean that right doesn't exist? No. The court would mention it.

    So again, we are left with Kennedy, who wrote that marriage is within the realm of the state(s) to decide, who did not assert any Constitutional right to gay marriage when he well could have. However desirable it may be, it is unlikely that we will see Kennedy, the 10th most conservative justice since 1937 by some counts, assert that gay marriage is a Constitutional right.
     
  10. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Bring on judgment day! Of course the real one will be down the road.
     
  11. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    However, I do wish to add these additional thoughts:

    The more that I learn about Justice Anthony Kennedy, the more that I’m convinced that he will come down on the right side of history. Yes, Kennedy does have a strong bent towards state’s rights on gay issues, bet he never said that there is no reason that would ever compel him restrict those rights.

    Though appointed by a Republican president, Kennedy is not easily pigeonholed ideologically. He has tended to look at cases individually instead of deciding them on the basis of a rigid ideology http://en.wikipedia.org/wiki/Anthony_Kennedy

    That issue may well be the harm that he knows is befalling children as a direct result of marriage inequality.

    The 77-year-old justice has also written the high court's three strongly pro-gay rights decisions in the past 18 years, with powerful language about the dignity of gay and lesbian Americans and the humiliation felt by children who are being brought up by same-sex parents who may face discrimination.
    In the most recent case, the court struck down part of the federal anti-gay marriage law in June, and Kennedy's opinion has since been cited in an unbroken string of lower-court rulings in support of same-sex marriage.

    To be sure, Kennedy's opinion in that case, U.S. v. Windsor, did not strike down state laws against same-sex unions. It dealt only with a federal law that denied a range of marriage benefits to same-sex couples who were legally married. But federal judges have leaned heavily on its reasoning to strike down restrictive marriage laws, as have lawyers for same-sex couples. http://www.huffingtonpost.com/2014/05/10/anthony-kennedy-gay-marriage_n_5302206.html

    There is much reason to be hopeful as we take a closer look at Kennedy:
    Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.

    His Supreme Court jurisprudence is characterized by an expansive commitment to individual liberty. He believes that American courts should consider international norms, and foreign courts have expanded gay rights. His politics, reflecting his background as a Sacramento lawyer and lobbyist, tend toward fiscal conservatism and moderate social views. And he has long had gay friends. http://www.nytimes.com/2013/09/02/u...ghts-in-a-high-place.html?pagewanted=all&_r=0

    Lastly, Kennedy is the only wild card. Roberts is not completely predictable although less likely than Kennedy to vote to invalidate bans on same sex marriage.

    …… , Chief Justice Roberts did something astonishing. He refused to prevent a Washington DC same sex marriage law from going into effect.

    Last fall the Washington D.C. city council passed a law allowing same sex couples to register to marry in that city and to legally marry. Because of the city’s unique status, Congress can overturn any law passed by the city. However it has a time limit on how long it has to overturn such laws. Yesterday was the end of the time period for overturning the marriage law and Congress took no action on it.

    http://www.outwordmagazine.com/insi...ief-justice-roberts-protects-gay-marriage-law

    In the DOMA case, Roberts chided both sides for rhetorical excess and refusing to take the other side’s arguments at face value.

    In his opinion on federal recognition of same-sex marriage, he seemed eager to buff off the sharper edges in both the majority and dissenting opinions.
    Read more: http://www.politico.com/story/2013/...ge-conservative-push-93485.html#ixzz3DDk16GFI

    In addition to the matter of Justice Kennedy and Roberts, I presented a comprehensive case as to how the court is likely to determine the issue of same sex marriage is deserving of strict scrutiny. The pattern and history of systematic discrimination against gays is undeniable and therefore it will be difficult to avoid raising them to the status of a suspect class while retaining a modicum of judicial credibility. There is also a strong case to be made that same sex marriage is a fundamental constitutional right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, which would also require strict scrutiny.

    Once state bans on same sex marriage are subjected to strict scrutiny, they most certainly will be struck down. We know that there are three criteria that a law must meet in order to survive strict scrutiny:
    First and foremost It must be justified by a compelling governmental interest . a concept that generally refers to something necessary or crucial, as opposed to something merely preferred. Need I remind readers that no state, nor any individual or organization has come up with a compelling government interest.

    Secondly, the law or policy must be narrowly tailored to achieve that goal or interest. But what is that goal or interest?

    Finally, the law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest.
    Again, what is that interest? The most common argument is that banning gay marriage is necessary to “preserve and protect traditional marriage and families” however, no one has been able to show that same sex marriage threatens the traditional family. Therefore, bans on same sex marriage not only fail the “narrowly tailored” test and the “least restrictive test,” it fails to even connect the dots as to how the traditional family will be protected. It is, in effect a legal non sequitur.

    Keep in mind that many lower court rulings have stated that gays are entitled to at least heightened scrutiny and some have said that we don’t even need to go there because the law does not even stand up to a rational basis review.

    Case in point:

    In a ruling holding that lawyers cannot discriminate against gay people when selecting juries, a unanimous panel for the U.S. Court of Appeals for the Ninth Circuit held that courts must apply what is known as “heightened scrutiny” when assessing laws or policies that discriminate on the basis of sexual orientation. Though the Ninth Circuit does not state precisely how much skepticism it will apply to laws that discriminate against gay litigants in the future, the phrase “heightened scrutiny” is a powerful one — often, laws subject to this scrutiny are treated as preemptively unconstitutional.
    Indeed, the Ninth Circuit’s opinion could potentially put sexual orientation discrimination claims on similar footing with race or gender discrimination claims, and require the government to meet a very high burden to justify a discriminatory law. http://thinkprogress.org/justice/20...appeals-court-ruling-change-game-lgbt-rights/


    Prior to the ruling by the 9th circuit ,.

    The Court of Appeals for the Fourth Circuit issued a sweeping ruling affirming the February 2014 decision from U.S. District Judge Arenda L. Wright Allen in Bostic v. Schaefer that the amendment to the Virginia Constitution barring marriage for same-sex couples violates the U.S. Constitution, and further determining that strict scrutiny review dictates that marriage bans are unconstitutional on the basis of both equal protection and due process. http://www.hrc.org/blog/entry/feder...rutiny-marriage-ruling-on-basis-of-equality-p

    And, Though they have won each step of the way, the gay couples challenging Utah’s ban on same-sex marriage will join their adversaries in asking the Supreme Court to make theirs the case for deciding whether states must license gay marriages.

    The development is intended to persuade the Supreme Court to take up the issue quickly, and it reflects a feeling among some gay rights groups that the justices are inclined to vote their way.

    http://www.washingtonpost.com/polit...283e08-1e71-11e4-82f9-2cd6fa8da5c4_story.html


    Update: U.S. Supreme Court Will Consider Marriage Equality In Five States http://www.advocate.com/politics/ma...will-consider-taking-five-marriage-cases-year
     
  12. Troianii

    Troianii Well-Known Member Past Donor

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    The decision of the judges is in. By a decision of 3-1, the judges have declared for Troianii. Mr. Swedish Guy, Cubed, and wgabrie held Troianii put forth the better argument, upside-down-cake held that Progressive Patriot put forth the better argument. The decision in, the thread is now open for discussion of the topic to all.

    A congratulation to both debaters for finishing the first formal debate on PF. Good job ProgressivePatriot.
     
  13. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Congratulations Troianii . Well done. Of course time will tell who was right and it looks like that time will be short. I hope that this thread can remain open until then MOD EDIT>>>BAITING<<<. This article was just published that should be of interest:

     
  14. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    WASHINGTON (AP) — The Supreme Court turned away appeals Monday from five states seeking to prohibit same-sex marriages, paving the way for an immediate expansion of gay and lesbian unions.

    The justices on Monday did not comment in rejecting appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. No other state cases were currently pending with the high court, but the justices stopped short of resolving for now the question of same-sex marriage nationwide.

    The court's order immediately ends delays on marriage in those states. Couples in six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review. http://www.huffingtonpost.com/2014/10/06/supreme-court-gay-marriage_n_5938854.html :clapping::clapping::clapping:
     
  15. Unifier

    Unifier New Member

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    For what it's worth, I think Troianii's arguments were more compelling, but I predict Progressive Patriot's position will likely come to pass when all is said and done.

    Sorry for the delayed response.
     
  16. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    So who are you voting for? The more compelling argument or what is likely to happen , and if my prediction is what is likely to happen, how is my argument not more compelling?
     
  17. Unifier

    Unifier New Member

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    This is kind of the conundrum here. I'm not sure.


    Because in reality, I think (as do many people) that it's already a foregone conclusion at this point that for better or for worse the federal government will eventually force all states to recognize same sex marriage. Constitutionality may or may not have any bearing on that (since I could easily see them manipulating, twisting, or ignoring the Constitution altogether on the final ruling). But the fact that you are likely to be right in your prediction doesn't necessarily mean you presented the best case for it. For example, if somebody says, "The Yankees are going to win the World Series because they're the best," that's not as compelling of an argument as somebody saying, "The Yankees will not win the world series because X player is on the disabled list, Y player is in a slump, and Z player has a history of choking in the post-season." The latter is more convincing despite the fact that the first person may very well be correct. They just didn't present the best reasons why.

    I'm not saying your arguments were as simplistic as the first guy in my analogy there. I actually thought your arguments were quite good as well. Very thorough. I disagreed with the accuracy of one or two, but generally you presented your case quite well. I just thought Troianii presented his slightly better.

    .........which leads me back to......

    What am I judging here? Who had the better argument or what is most likely to happen? That's where I'm stuck. If it's based on the quality of the arguments, I have to give it to Troianii. But if it's based on actual probability, then I have to give it to you.
     
  18. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Thank you for clarifying. Time will tell. Today was a pretty good indicator of where we are going.
     
  19. PT Again

    PT Again New Member

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    Today SCOTUS had the chance to end it once and for all............

    They chose to kick the can............

    Sad when they have to play politics in an election year.

    I cant think of any valid reason for them to let it linger.......
     
  20. Sadanie

    Sadanie Well-Known Member Past Donor

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    I found your arguments more compelling, but because I recognize my bias, I decided not to be a judge. I believe that, as time goes, you will be proven correct.
     
  21. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    What are you upset about? They are letting the issue play out in the lower courts. There was no need for them to step in at this point. I believe that they will take it up if and when there is a circuit split which can happen with the 5th or 6th circuit which have cases coming up. We don't know what the reasoning for rejecting the cases was, nor do we know which justices, if any wanted to take it up now. We only know that less than 4 did want to go forward. You want it finished? It will be and when it is, it may not be finished in a way that you like.
     
  22. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Thank you. Everyone is biased. It would be very hard if not impossible to assess the argument independent of the desired outcome.Funny how this coincided with the big news from SCOTUS yesterday. It looks like there is no turning back now. It's also funny how the anti equality MOD EDIT>>>BAITING<<< seem to be staying away, following the SCOTUS' allowing the lower court rulings to stand.
     
  23. Hoosier8

    Hoosier8 Well-Known Member Past Donor

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    You dismiss Kennedy to easily. If you study most of Kennedy's decisions, they weight heavily on individual freedom protections. That is why he is hard to pin down because people try to label him conservative or liberal and miss that point. It was why he was adamantly opposed to Obamacare as it changed the relationship between citizen and government forever (before Roberts judicial activism changing the law to a tax).
     
  24. ProgressivePatriot

    ProgressivePatriot Well-Known Member

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    Is that a vote for me?
     
  25. Hoosier8

    Hoosier8 Well-Known Member Past Donor

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    I would say it is a vote for freedom and the reason I respect Kennedy (yes you are right).
     

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