High Court Split in Gay Marriage Questioning

Newser ^ | 03/26/2013 | Kevin Spak

[Responsibility2nd]

The Supreme Court has finished hearing the arguments in the Proposition 8 case, and prognosticators are busy reading the tea leaves for what they might be thinking. Here's what went down:

• Ruth Bader Ginsberg, Elena Kagan, Sonia Sotomayor, and, perhaps surprisingly, John Roberts, peppered Charles Cooper, the lead attorney for Proposition 8, with questions about whether California voters had the authority to appeal a lower court ruling blocking Prop 8, USA Today reports.
• Antonin Scalia and Samuel Alito came out sounding "very hostile to the idea of the court imposing same-sex marriage," CNN's legal analyst says, and they were consistently the voices in favor of the same-sex marriage ban.
• Perpetual swing voter Anthony Kennedy seemed focused on the harm banning same-sex marriage might have on the children of gay couples. "The voice of the children is important, don't you think?" he asked. But Scalia countered that having same-sex parents might be harmful to children in the first place.
• At one point, Cooper argued that procreation was a vital state interest, and that same-sex couples don't address it, the Washington Post reports. Elena Kagan replied by asking if, in that case, the state shouldn't allow marriages of people over age 55. "I assure you," she said, "if both the man and the woman are over 55, there are not a lot of children coming out of that marriage."
• Clarence Thomas, as usual, said nothing.
• Prognosis of Tom Goldstein at SCOTUSblog: The court doesn't have the wherewithal to strike down or uphold Prop 8, with Kennedy seemingly uneasy with either position; he was "deeply concerned" that the court could be acting prematurely, with the relative newness of same-sex marriage. Goldstein thinks either Roberts will join the liberal justices in declaring that the state doesn't have the standing to appeal, or the justices will fail to reach a majority. Either way, lower court rulings against Prop 8 would stand, but nationally the issue would remain up in the air.
• Theodore Olson, one of the high-profile lawyers arguing for marriage equality, had a different take. Asked if the justices would make a broad ruling, he replied, "Based upon the questions that the justices asked"—here he paused briefly for effect—"I have no idea."

 

[Beagle8U]

In some cases a marriage between a man and a woman won't produce any children.

In NO case, zero zip none, will two queers produce a child!

Throughout time a natural marriage has always been man and woman.

[matginzac]

You are right...
Plenty of ways to argue this...
Procreation though should still be in the mix, I think.
I don’t think abandoning the idea that “raising children in a mom/dad situation is the best for them” is a good strategy...
Regardless of the “popular” discounting this in our present culture, it’s still valid....

[Venturer]

Exactly. Since Obama blackmailed Roberts about his kids, Roberts is OWNED.

[mrsmith]

“JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle. “

I hate the “Living Constitution” of the feudalists- it obviates thinking.

[Billthedrill]

It was constitutional when we ­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control...

Uh, what? I don't recall reading any decisions signed by "we as a culture". Nor do I think "we as a culture" have any particular scientific credentials to determine whether sexual behavior is controllable.

It is clear, though, that certain persons who style themselves as cultural leaders have decided to ramrod the thing through, but I don't recall them having any Constitutional standing either. Well, Lady Gaga maybe.

[Aetius]

Every Republican President since at least Eisenhower (not sure if Ford had any picks) has made abysmal, horrible appointments to the Sup Court.

But W should have learned from his father’s experience with Souter. His father could have selected Edith Jones, or Emilio Garza, or really anybody other than the ‘slam dunk’ for conservatives that he was told Souter would be.

Likewise W could have done better. Though to be fair to W (which isn’t easy for me since he wrecked conservatism and elected Obama), Roberts seemed like he’d turn out to be a solid conservative until last summer with obamacare and the Arizon immigration law.

Now though I think there is very little chance he’ll do the right thing and join an opinion that says this matter should be left entirely to the states for their own purposes, and to Congress for federal purposes.

[longtermmemmory]

two people over 55 can raise a child as mother and father and be a normal family. a man and a woman can adopt a child and never tell the child.

society rewards the insitution of marriage not the orgasm.

[longtermmemmory]

the way to address that is to: (on ALL FEDERAL JUDGES)

-no more judges from the Justice Department

-moratorium on LAW CLERKS from harvard or yale. (there are other law schools too)

-moratorium on judges who are from harvard or yale.

-require judges with lifetime appointments (remember magistrate and bankruptcy judges are not for life) actually CIRCULATE to other jurisdictions.

start shutting down state law schools.

-No more guarantee student loans for law school

[lentulusgracchus]

Ruth Bader Ginsberg, Elena Kagan, Sonia Sotomayor, and, perhaps surprisingly, John Roberts, peppered Charles Cooper, the lead attorney for Proposition 8, with questions about whether California voters had the authority to appeal a lower court ruling blocking Prop 8, USA Today reports.

Let me get this straight: an Act of the Whole People of the State can be blocked by the first judge the ACLU runs sniveling to?

My cash under the bench to a roundheeled political judge equals your Majesty of the Law and your Sovereignty of the People? These things mean nothing after the judge enters the room?

[Hulka]

“Perpetual swing voter Anthony Kennedy seemed focused on the harm banning same-sex marriage might have on the children of gay couples.”

“Harm?”

Irrelevant.

The question is the LAW, not “harm.”

[lentulusgracchus]

I hate the “Living Constitution” of the feudalists- it obviates thinking.

It's a con job, in the first place.

Did you get a load of Olson smart-assing Scalia? Where did he get that kind of cojones?

I'm starting to dislike this guy. Since when does he start lining up with the Sociopaths?

[lentulusgracchus]

Notice the way he framed it: Wrong way around.

He's already going to vote for the straight-haters.

[longtermmemmory]

harm? how about all children have one mother and one father period. The fact a manufactured child via science or adoption is FORCED into a recreational sex fetish houshold can not be good in any way shape or form.

This is about adult fetishes not children. The homosexuals want to remove the future from marriage. The ABA has been pushing to declaure children as mere “accessories” to marriage for decades. (see feminists)

[wardaddy]

Its way too early to tell

Kagan and Ginsburg would like to redefine marriage I bet

And Scalia Alito and Thomas likely not

The rest of it

Who knows...