Skip to main content

Well ... mostly.  (Courtesy ABC News.)
The United States Department of Justice has filed its amicus brief with the Supreme Court in the Prop 8 litigation. While it does say that the Equal Protection Clause of the Constitution requires that Prop 8 be struck down under a heightened scrutiny standard, it does not go the further step that the Plaintiffs and others have urged in holding that Constitution requires marriage equality for all Americans.

Instead, the brief only argues that in those states which have granted civil unions to same-sex couples (DE, HI, IL, NV, NJ, OR, and RI), they must instead be granted the title of marriage with the full rights and privileges contained therein. The brief does not address whether all marriage laws which fail to recognize gay couples are invalid, though the logic of its argument would ultimately dictate this outcome. (Nor, for that matter, does it address whether Prop 8's backers have standing to pursue this appeal, when California's Governor and Attorney General have refused to defend Prop 8.)

The brief summarizes its punt as follows:

The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.
To be sure, the brief argues all the right things about why laws targeting gays should be subject to heightened scrutiny, and that none of the proffered justifications for treating their relationships differently have merit ("Reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.")  Still, for those who were seeking a full-throated endorsement of 50-state marriage equality, you will find this brief lacking.

That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Originally posted to Adam B on Thu Feb 28, 2013 at 04:43 PM PST.

Also republished by Kossacks for Marriage Equality and Daily Kos.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  I'm digging it. (38+ / 0-)
    As this Court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their ownsearch for greater freedom.” (Citing Lawrence v. Texas) The state therefore must explain what interests support continuing a “tradition,” especially when that tradition is defined by a classification burdening a minority group.
    And
    Prejudice may not, however, be the basis for differential treatment under the law.
    And
    Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law
    Kinda awesome to see the SG write these things in a brief.  I can see how not arguing for a right in 50 states might not make everyone happy but this seems like a good thing to me.

    And plus it's hard to see how marriage bans don't fail under heightened scrutiny.

    I am proud to be an Editor at Courage Campaign Institute's EqualityOnTrial.com
    @indiemcemopants on Twitter

    by Scottie Thomaston on Thu Feb 28, 2013 at 04:50:03 PM PST

    •  I must say (2+ / 0-)
      Recommended by:
      skrekk, CoyoteMarti

      on a first read I don't agree with Adam here.  The brief  argues that "it is manifest that sexual orientation falls squarely in the category of classifications for which heightened scrutiny is designed" (page 13).

      The endgame on gay marriage is the extension of Loving v Virgina, the case that held that laws banning mixed race marriages were unconstitutional, to gay marriage.  In the law the real battle is over the standard to be applied.  If the court were to agree with the Administration's brief, the extension of Loving becomes only a matter of time.  

      It is true that the Administration makes other arguments, but it would legal malpractice not to.  

      I don't think the court would find a federal gay marriage right on a 5-4 (after all, Loving was unanimous).  But we may very well be only a vote or two away.

      Victory is in sight, and this brief is a clear step that brings that victory closer.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Feb 28, 2013 at 08:06:26 PM PST

      [ Parent ]

  •  This take seems to disagree on limited scope... (19+ / 0-)
    The second key to the brief is that it argues that when you apply “heightened scrutiny” to Prop 8, it is found to violate the equal protection clause of the U.S. Constitution.

    What this means is that the government, while focusing its brief on Prop 8 itself, has, for all practical purposes, asked the Supreme Court to set a precedent that can be applied to all state laws banning gay marriage — the arguments that these laws must survive “heightened scrutiny,” and that they violate the Constitution.

    This is exactly what the lawyers arguing the case against Prop 8 had hoped for. Theodore Boutrous, a lawyer who is arguing for the plaintiffs along with Ted Olsen, emails me this:

        “This is a powerful brief by the United States placing the full weight of its authority in favor of equality for all Americans. This is an important day in this nation’s history. If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either.”

    http://www.washingtonpost.com/...

    If you're not talking about what billionaire hedgefund bankster Peter G. Peterson is up to you're having the wrong conversations.

    by Jacoby Jonze on Thu Feb 28, 2013 at 04:57:25 PM PST

    •  It essentially argues both points. (15+ / 0-)

      It says it's a limited eight-state argument. And it also says heightened scrutiny would apply (and as I said in my comment above it doesn't seem like marriage bans would pass if that standard is applied.)

      So really either way of looking at it is valid.

      I am proud to be an Editor at Courage Campaign Institute's EqualityOnTrial.com
      @indiemcemopants on Twitter

      by Scottie Thomaston on Thu Feb 28, 2013 at 05:00:13 PM PST

      [ Parent ]

      •  I think the way Adam framed the question (1+ / 0-)
        Recommended by:
        Adam B

        makes it seem narrower than the brief really is.  It doesn't explicitly say that the ruling it seeks would apply to these 8 states, or that marriage equality should be extended to these 8 states only.  

        What it argues is that the lawsuit can be resolved on grounds only immediately applicable to those states, but by arguing for heightened scrutiny, it extends broadly.  A strict application of Romer v. Evans and rational basis review could result in a ruling that says if a state extends all benefits of married couples to gays and lesbians, it has to recognize those unions as marriages; but a state is not so required.  A precedent on heightened scrutiny, by contrast, makes the status of states with no civil unions considerably worse, not better, but it leaves the final resolution to interested parties in those states to bring their own lawsuits.  

        Another way to think of it is, what arguments can the U.S. Government make better than the parties, themselves.  I think that's why they were so focused on level of scrutiny, to the point of not even addressing whether Prop 8 satisfies rational basis (though reading between the lines, the government does not think it does -- it argues there's no interest at all, rather than qualifying whether an interest is "substantial").  When you throw the DOMA arguments in the mix, which arguably more directly implicates the question of scrutiny, the Obama Derangement Syndrome on display in some of the comments especially fails.

        Difficult, difficult, lemon difficult.

        by Loge on Fri Mar 01, 2013 at 07:56:56 AM PST

        [ Parent ]

    •  Thanks for the link, very happy to see this (19+ / 0-)

      Personally I am quite happy with the brief they submitted. Interesting that the article you linked presents a completely different interpretation from the one here:

      Just as gay rights advocates had hoped, Obama’s Solicitor General has made a sweeping case against Proposition 8 as unconstitutional, which is a bold move and makes it more likely that the Supreme Court will strike down the law with a similarly sweeping argument.

      In short, in this brief, the United States government has put the force of a fully fleshed out legal argument behind Obama’s historic words during his Inaugural Address: “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

      I agree. This administration has turned around completely on this issue, and I am thrilled to see them not shying away from it anymore. I don't know that I agree with the idea that this makes it any more likely the court will rule in our favor, but nonetheless it means a great deal that they submitted it and made a strong argument.
  •  Heightened Scrutiny (25+ / 0-)

    If the court rules that discrimination based on sexual orientation demands heightened scrutiny, that gives a tremendous legal victory to people seeking equality. Even if the court decides differently, I'm glad our administration is pushing for it.

  •  Limited, sure, but not as limited as I expected (20+ / 0-)

    This is really more than I expected the administration to do here.  The upgrading of civil unions and domestic partnerships is REALLY an important issue with, well, devastating consequences to DOMA.

    I like this DOJ more every day, even though I still have issues with it.

    -7.75, -8.10; . . . Seneca Falls, Selma and Stonewall (h/t cooper888)

    by Dave in Northridge on Thu Feb 28, 2013 at 05:24:55 PM PST

    •  Surreal (1+ / 0-)
      Recommended by:
      FogCityJohn

      that the same SG who defends the VRA and argues against Prop 8 and for gay marriage also defends warrantless wiretaps and argues against standing for those clearly harmed by it. I.e. 14th & 15th good, 1st & 4th bad.

      Oh, and drones...

      Still, this is good.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Mar 01, 2013 at 07:22:30 AM PST

      [ Parent ]

  •  This strikes me as a smart play (12+ / 0-)

    It seems that the relative silence on 50 states issue is not, in this case, a tacit statement of support for varying state standards.  Basically, it makes the case for marriage equality...then mostly STFU.  

    I am sure there are plenty of amicus briefs that go further.  Perhaps it's best for the DOJ to really hit the central issues, and lead the court to water...perhaps they will drink.

    "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

    by Empty Vessel on Thu Feb 28, 2013 at 05:38:28 PM PST

  •  SCOTUSBlog seems to think (12+ / 0-)

    a speech is forthcoming:

    Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make.  Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case.  The President could take the opportunity to speak to the nation on the marriage question soon.

    I am proud to be an Editor at Courage Campaign Institute's EqualityOnTrial.com
    @indiemcemopants on Twitter

    by Scottie Thomaston on Thu Feb 28, 2013 at 05:52:53 PM PST

  •  I got a somewhat warmer feeling (12+ / 0-)

    Reading the brief I got a somewhat better feeling than Adam did about it.

    First, the Administration filed a brief - that in itself was apparently in question.

    Second, the brief wasn't narrowly tailored to the "had a right that was taken away" argument that would have applied to California and only California.

    Third, it directly goes to the recognition of domestic partnerships as being discriminatory vs. marriage.

    And fourth, it asks for heightened scrutiny that could form the foundation for recognition of these marriages between states, and the recognition of gay marriages at the Federal level, and further on down the line the national recognition of gay marriage.

    Could it have gone further? Yeah. But I think this brief lays out a persuasive argument that moves the ball significantly down the field.

    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

    by Phoenix Rising on Thu Feb 28, 2013 at 06:15:35 PM PST

  •  One other state of note (13+ / 0-)

    Colorado will be passing a Civil Unions bill in the next week which the Governor has said he will sign. Colorado is banned by a previous initiative from recognizing gay marriage, but if the Court rules along the DOJ lines, Colorado's soon-to-be-law will get an automatic upgrade.

    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

    by Phoenix Rising on Thu Feb 28, 2013 at 06:18:35 PM PST

  •  This confirms what I heard on the radio before. (1+ / 0-)
    Recommended by:
    Odysseus

    It's a bizarre argument.  The seven states that have legislated civil equality for gays can't forbid gay marriage because it's an equal-protection issue, while the 42 states that either haven't legislated it or (more perversely) have legislated explicitly against it are apparently home-free.  I understand the desire to make a bounded case but I look forward to the government's response when a Justice asks how it can be unconstitutional to go 60 or 90% towards equality while it's OK to be stuck at 0%.

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Thu Feb 28, 2013 at 06:21:20 PM PST

    •  OK, 43 states. I guess we did let Hawaii in. n/t (0+ / 0-)

      You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

      by Rich in PA on Thu Feb 28, 2013 at 06:22:00 PM PST

      [ Parent ]

    •  Well, they're not home free ... (8+ / 0-)

      ... but resolving their status isn't necessary to resolving this case.

      •  When one of the conservative (sic) Justices... (1+ / 0-)
        Recommended by:
        Odysseus

        ...brings up that irony, as I imagine they will, I can't think of an answer that doesn't suggest-to-demand resolution of the broader 50-state question.  And that's why I suspect the conservatives will raise it.

        You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

        by Rich in PA on Thu Feb 28, 2013 at 06:30:05 PM PST

        [ Parent ]

      •  Not necessary to resolve the case (6+ / 0-)

        But I can envision future broader decisions being based on something that covers even the X states that have such partnerships at the time of the decision.

        It's interesting reading through the brief because it gives you an idea of just what multiple levels of consideration the Administration believe will be considered in the ruling, and where they think they'd like to push the Court to acceptance. Obviously they're not expecting a broad ruling, but I think they'd like to get their foot in the door, get a heightened scrutiny standard set, and drag these states over the line of that one last little bit of discrimination while they're at it.

        Clearly the Administration has evolved in its thinking to be fighting as much for the word "marriage" as the rights.

        Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

        by Phoenix Rising on Thu Feb 28, 2013 at 06:43:58 PM PST

        [ Parent ]

      •  The inevitable road (3+ / 0-)
        Recommended by:
        sfbob, harrije, Cassandra Waites

        to citing this passage:

        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.
        as precident for this:
        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 sexual preference is 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
        This brief is another step on the road to the extension of Loving.

        http://caselaw.lp.findlaw.com/...

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Thu Feb 28, 2013 at 07:43:26 PM PST

        [ Parent ]

        •  Loving is cited 4 times (5+ / 0-)

          in the Administration's brief.

          It is cited in support of the argument that:
          1. PRESERVING A TRADITION OF LIMITING MARRIAGE TO
          HETEROSEXUALS IS NOT ITSELF A SUFFICIENTLY IMPORTANT INTEREST
          TO JUSTIFY PROPOSITION 8.
          2.  That the traditional deference to states in the determination of marriage laws does exempt such laws from equal protection
          3.   That marriage is about more than child rearing
          4.   And most tellingly in this on page 27:
          JUST AS A STATE COULD
          NOT RELY ON AN INTEREST IN DEMOCRATIC SELF-GOVERNANCE TO
          PROHIBIT MARRIAGE BETWEEN INDIVIDUALS OF A DIFFERENT RACE
          (CF. lOVING, SUPRA), IT CANNOT RELY ON SUCH AN INTEREST TO
          PROHIBIT MARRIAGE BETWEEN INDIVIDUALS OF THE SAME SEX—
          AT LEAST TO THE EXTENT THAT EXCLUSION WOULD VIOLATE EQUAL
          PROTECTION.

          The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

          by fladem on Thu Feb 28, 2013 at 07:54:14 PM PST

          [ Parent ]

          •  Now I'm Really Confused (0+ / 0-)

            I'll have to read the brief myself. How can the brief include that line and NOT make an argument for a sweeping ruling?

            Every relationship of domination, exploitation, or oppression is by definition violent. Dominator and dominated alike are reduced to things - the former dehumanized by an excess of power, the latter by a lack of it. And things cannot love.-Paulo Freire

            by samdiener on Fri Mar 01, 2013 at 07:26:01 AM PST

            [ Parent ]

    •  That question seems to rest on the fact (0+ / 0-)

      that Prop 8 is a law that removes a previously enjoyed status. It pro-actively discriminates in a manner that is not an established condition. And a particular state's laws must apply equally to all persons in that state but not necessarily to persons of other states??

  •  This rationale would affect 8 states today, if the (3+ / 0-)
    Recommended by:
    glorificus, harrije, Cassandra Waites

    court accepts it.  But it would set the stage for affecting all states in 5 to 10 years, after all the litigation over its implications is completed.  Loving was 13/14 years after Brown.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Feb 28, 2013 at 06:56:39 PM PST

  •  We SHALL Overcome. (1+ / 0-)
    Recommended by:
    Cassandra Waites

    Enough fossil fuel remains on Earth to warm it 6 degrees C by 2100 AD if it is all used. A +6 C planet will only sustain half a billion humans. Human population will rise to 9 billion by 2050. Any questions?

    by davidincleveland on Thu Feb 28, 2013 at 08:04:55 PM PST

  •  I can't exactly say I blame Obama (0+ / 0-)

    considering that in the last 5 years Obama has been fairly bold in general and I'm unsure of how the Surpreme Court ruling would interact with states that have had consitutional amendments banning same sex marriage.

    I would be interested in knowning what exactly the SC can do in the case of a consitutional ban

    In the time that I have been given,
    I am what I am

    by duhban on Thu Feb 28, 2013 at 08:24:00 PM PST

  •  I have no respect for the President in this. (1+ / 0-)
    Recommended by:
    craigkg

    The alleged constitutional lawyer can't bring himself to just spit it out... the guy who is supposed to be leading by example, can't manage to bring himself to stand up for the right thing.

    The Equal Protection Clause makes it utterly impossible, purely in terms of logic ... and the LAW is logic ... to deny the governmental recognition of marriage based on purely arbitrary basis.

    You cannot allow two consenting adult heterosexuals to have their marriage recognized by government, and yet deny two consenting adult homosexuals marriage.

    Well, YOU can, no one is actually holding a gun to SCOTUS' head to make them do the right thing, but you can't if you were actually intellectually honest. Duh.

    Otherwise, the following is constitutional...

    The State can ban FAT people from marriage.

    The State can ban STUPID people from marriage.

    The State can ban BALD people from marriage.

    The State can ban BLACK and WHITE people from marrying. Oh, wait, I thought they did but were forced to stop doing that? Hmm, odd, I guess race isn't an "arbitrary" parameter.

    The only thing worse than the bigotry and monumental idiocy of the whole gay marriage situation, is the craven cowardice of allegedly intelligent people on this subject.

    The bans and prohibitions against gay marriage are utterly unconstitutional, and a blatant... and always have been ... violation of the equal protection clause.

    In fact, if you were in a real world of actual men (where none of this stupid ignorant bigoted shit happens), and wanted to create an example scenario for law school about how to analyze and address the equal protection clause.... well, presto.

    •  And, yet, this same SC, is about to overturn (1+ / 0-)
      Recommended by:
      The Jester

      voting protection, which not only has its own amendment, but would also fall under equal protection.  This court has at least four members that seem to act on how hurt their egos are.

      "But the problem with any ideology is that it gives the answer before you look at the evidence." - President Clinton

      by anonevent on Fri Mar 01, 2013 at 07:02:18 AM PST

      [ Parent ]

      •  I still think they won't, we are concerned over (0+ / 0-)

        Scalia's comment/question, but the court will confirm the VRA legality. You can only look sooo partisan before people come for you with pitchforks and machete's.

        We will know soon.

    •  Perhaps he's still finding it hard (0+ / 0-)

      to refute the moronic "But this will lead to men marrying goats" argument, so he's proceeding very cautiously on this.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Mar 01, 2013 at 07:33:40 AM PST

      [ Parent ]

  •  Wow, that's a 180 for Obama (1+ / 0-)
    Recommended by:
    kovie

    80 % of Success is Just Showing Up! CLIMATE CHANGE: The era of procrastination, half-measures & delays is coming to an end; In its place we are entering a period of consequences!

    by Churchill on Fri Mar 01, 2013 at 06:33:13 AM PST

    •  I'm just now reading about how Churchill himself (0+ / 0-)

      did a 180 on the welfare state when he switched parties early in his career. So there's something to be said for being a progressive conservative. TR was also one, as was Bismarck. I see Obama as basically one, too. I.e. a Burkean.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Mar 01, 2013 at 07:31:51 AM PST

      [ Parent ]

  •  ...or, as a NeoCon would say, that's a 360 LOL (1+ / 0-)
    Recommended by:
    kovie

    80 % of Success is Just Showing Up! CLIMATE CHANGE: The era of procrastination, half-measures & delays is coming to an end; In its place we are entering a period of consequences!

    by Churchill on Fri Mar 01, 2013 at 06:33:32 AM PST

    •  Or, as a Hegelian might say, it's a spiral 360 (0+ / 0-)

      You end up where you started but at a higher level of understanding.

      Or so I vaguely recall from my college history classes.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Mar 01, 2013 at 07:29:29 AM PST

      [ Parent ]

  •  That's our Pres! - never a quarter step further (1+ / 0-)
    Recommended by:
    samdiener

    than necessary.  Why go beyond the minimum if you don't have to?  Why take a stand on principle?  So bold.  So bold.  So uninspiring when you get right down to it.

    The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt. Bertrand Russell

    by accumbens on Fri Mar 01, 2013 at 07:10:49 AM PST

    •  Sadly, I agree (1+ / 0-)
      Recommended by:
      accumbens

      Obama's brief was a stride forward for the administration - and is eons beyond his troglodytic opposition to same sex marriage position a mere 4 years ago - but still doesn't get it. If one advances an equal protection argument, one can't turn around and say that this only applies to some states and not others. The logic of anti-discrimination calls for a sweeping ruling: bigoted laws and bigoted state constitutional amendments barring marriage equality are violations of the equal protection clause. It really should not be that complicated.

      If the court decides not to decide that with this case because they don't have to reach that far to decide this particular case, that's its decision (there are other cases in the pipeline where this will be directly at issue). But it's disappointing (if, sadly, all too consistent with so much of this administration's approach to politics) to read that the Obama administration still, despite this step forward, isn't advancing the more important, and broader principle.

      Every relationship of domination, exploitation, or oppression is by definition violent. Dominator and dominated alike are reduced to things - the former dehumanized by an excess of power, the latter by a lack of it. And things cannot love.-Paulo Freire

      by samdiener on Fri Mar 01, 2013 at 07:16:46 AM PST

      [ Parent ]

      •  It's incrementalism for its own sake. Aside from (0+ / 0-)

        being incredibly boring, it assures that nothing - including long overdue injustices - moves much beyond what the forces of retrogression seek.  It's capitulation to conservatism.  But then, why do you expect from a traditional moderate Republican?

        The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt. Bertrand Russell

        by accumbens on Fri Mar 01, 2013 at 07:25:28 AM PST

        [ Parent ]

    •  You tag is uninspiring. (0+ / 0-)
    •  YEAH!! Why can't he be more like Clinton? (3+ / 0-)
      Recommended by:
      Adam B, CoyoteMarti, doroma

      Oh wait, Clinton signed DOMA.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Fri Mar 01, 2013 at 07:55:39 AM PST

      [ Parent ]

  •  Any idea why they're taking this apparently (1+ / 0-)
    Recommended by:
    lostboyjim

    conservative approach to supporting gay marriage? Is this seen as the most promising path to eventually making it the law of the land and striking down DOMA and all state-level anti-gay marriage laws, or is it more a matter of Obama still getting used to the idea of legalizing gay marriage and not quite yet ready to push for it nationally? My apologies but IANAL so I'm a bit lost with all this talk about strict scrutiny vs. rational basis.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Mar 01, 2013 at 07:28:01 AM PST

    •  It's not that conservative (2+ / 0-)
      Recommended by:
      CoyoteMarti, FogCityJohn

      It's saying that all laws which treat gays different should be subject to heightened scrutiny, the way laws which treat women differently already are, which would be a marked change in constitutional interpretation.  Where it's a step short is that it doesn't apply that standard much beyond Prop 8 itself, but if that standard's adopted, 50-state equality will come soon enough.

      •  Conservative in the way you just explained (0+ / 0-)

        Why do you think they haven't gone that extra step? Because it's seen as too risky or even too far, constitutionally, or simply unnecessary if it's likely to happen on its own?

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Fri Mar 01, 2013 at 08:35:45 AM PST

        [ Parent ]

      •  I think this is the key point. (1+ / 0-)
        Recommended by:
        Adam B

        At first glance, the administration's position in this brief may seem somewhat timid, as it limits its argument to a rather narrow set of facts.  But the brief argues for heightened scrutiny for classifications based on sexual orientation.  

        I think you're being a bit restrained when you say that adoption of that standard "would be a marked change in constitutional interpretation."  In my view, it would be  HUGE change.  As you say, if that standard is adopted, then nationwide marriage equality would become all but inevitable.  And the standard would likely also apply to any other statute that disadvantages gay people.  So while I can understand feeling a bit ambivalent about this particular argument, I think the administration's overall position is an extraordinarily positive development.  

        I don't know about the rest of you folks, but this aging gay lawyer is celebrating.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Fri Mar 01, 2013 at 03:34:14 PM PST

        [ Parent ]

  •  It's becoming Iconic... (0+ / 0-)

    ..."To pull a Barry": Puff 'em up with glorious, righteous rhetoric, and when the rubber hits the road, the tire goes flat or has an outright blowout.

    And like the right-wing dog whistles... as slipped by under the radar with the Woodward krfufll, the tangential admission that the purpose of the sequester is to get the progressives back to the table where they will HAVE to accept cuts to social security and medicare, with the White House, it's intentional--from the beginning.

    "That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

    Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well."

  •  As for Prop 8... (0+ / 0-)

    To me, this has always seemed a clear violation of the equal protection clause. In California, we currently have 2 groups of gay couples; those that are legally married and those not allowed to marry. Before the approval of same-sex marriage on some of the states' ballots last year, I thought the SCOTUS would play it safe and uphold the ruling against Prop 8, as it would affect only California. Now, I can't help but wonder what the court will do on DOMA.

  •  I'm not (0+ / 0-)

    the brightest bulb on the Christmas tree, but from the comments here, it seems that the brief is urging a step backwards in saying that it's marriage-or-nothing, so following that logic gays in a state like say Wyoming would be worse off, while the folks in the existing CU states get their "upgrades"?

  •  Judging by (0+ / 0-)

    Some of the vitriol thrown around by the right regarding this issue, it appears that a good portion of the population of this country suffers from "reaction formation"

    I got my Obama I-Phone 5 before you did

    by Caligulabob on Fri Mar 01, 2013 at 08:42:55 AM PST

  •  States are constitutionally required to recognize (0+ / 0-)

    the legal contracts made under the laws in other states.  Marriage is a legal contract.  If this contract is legal to make in California, then it holds up in Louisiana.  Parties might not be able to MAKE this contract in Louisiana, but Louisiana MUST recognize the marriages performed in California.

    Full Faith and Credit Clause.
    End of fucking argument.

    •  Except that (0+ / 0-)

      there's something called the Public Policy Exception. As far as I can tell, that has yet to be invoked and challenged in terms of a FF&C case?

      •  Isn't everything public policy? (0+ / 0-)

        Wikipedia defines it as "the principled guide to action taken by the administrative executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. "  Looking up "institution" yields the following list of things that would then be excepted:
        Wikipedia:Institution:Examples_of_institutions

        Seems like that argument is doomed to fail, since it completely nullifies the FF&C clause for any situation that has "institutional rules", which of course, every situation does.

  •  Good advice: (0+ / 0-)

    * Pick your battles.
    * Don't get out in front of yourself.

    --UB.

    "Daddy, every time a bell rings, a Libertaria­n picks up his Pan Am tickets for the Libertaria­n Paradise of East Somalia!"

    by unclebucky on Fri Mar 01, 2013 at 09:33:06 AM PST

  •  "... our gay brothers and sisters ..." - Just the (0+ / 0-)

    phrase to make wingnut heads explode because they can't erase that mental picture!

    Private health insurance: a protection racket without the protection.

    by rustypatina on Fri Mar 01, 2013 at 01:54:47 PM PST

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site