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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJustice Anthony Kennedy asking skeptical questions during arguments over right of same-sex marriage
WASHINGTON (AP) Supreme Court Justice Anthony Kennedy is asking skeptical questions as the court hears arguments over the right of gay and lesbian couples to marry.
Kennedy, whose vote is seen as pivotal, said Tuesday that marriage has been understood as one man and one woman for "millennia-plus time." He said same-sex marriage has been debated in earnest for only about 10 years and he wondered whether scholars and the public need more time.
He told a lawyer representing same-sex couples that it's "very difficult" for the court to say "we know better."
Chief Justice John Roberts said that gay couples are not seeking to join the institution of marriage, they are seeking to change it.
The session was interrupted after about 30 minutes a protester yelling loudly. He was removed by security.
Read more: http://apnews.excite.com/article/20150428/us--supreme_court-gay_marriage-f204f7a7be.html
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Kennedy reveling in his "swing vote" role.
So, racism and misogyny have also been the rule for "millennia-plus time."
Does that mean they should be upheld legally as well?
cilla4progress
(24,736 posts)will say this ...
Zorra
(27,670 posts)Surya Gayatri
(15,445 posts)AlinPA
(15,071 posts)Surya Gayatri
(15,445 posts)annul the hundreds of thousands of same-sex marriages already in existence?
Zorra
(27,670 posts)There are two possible outcomes when the court issues its decision, expected by late June.
If the court agrees with states who say they should be free to decide who can get married within their borders, then nation would remain divided, with some states choosing to permit it and others banning it. in the scenario, same-sex marriage would remain legal in the 16 states that have adopted it by popular vote, by vote of a state legislature, or by state court decision.
If the court sides with gay couples, and rules that states cannot refuse to issue marriage licenses to gay couples, then 14 existing state bans would be struck down and same-sex marriage would become law of the land, bringing the the legal dispute to an end.
http://www.nbcnews.com/news/us-news/supreme-court-hears-arguments-gay-marriage-n349631
AlinPA
(15,071 posts)Kennedy is a republican and the pressure on him will be incredible to go with his party on this.
yeoman6987
(14,449 posts)Although they are doing what they get paid to do discuss everything. This will be a 6-3 decision on the side of gay marriage.
tammywammy
(26,582 posts)yeoman6987
(14,449 posts)DemocratSinceBirth
(99,710 posts)Not because this one issue will decide the election but because it puts them on the wrong side of the zeitgeist.
hifiguy
(33,688 posts)And Kennedy has been receptive to gay rights arguments in the past.
I still predict 6-3 with Roberts and Kennedy in the majority, though possibly concurring.
I've been wrong before but I think the SCOTUS is smart enough to look at the evolving trend with so many states already in the equality camp.
blkmusclmachine
(16,149 posts)NuclearDem
(16,184 posts)Surya Gayatri
(15,445 posts)in front of the rabid right, so he can come down on the side of right in the final decision?
marmar
(77,081 posts)marmar
(77,081 posts)..... to rule against equal marriage. ...... but on second glance, it just seems like the usual extensive questioning.
yeoman6987
(14,449 posts)Everything is brought up as it should be. Hope I am not naive. But I still think 6-3 decision for gay marriage.
msanthrope
(37,549 posts)If he were set in stone against gay marriage he wouldn't be asking these questions.
Surya Gayatri
(15,445 posts)Jefferson23
(30,099 posts)snip* Whos right? It really is a matter of interpretationbut on this question, Justice Kennedy, the swing vote in the current court, has already sided with the liberals. Since 1996, he has held, in three crucial gay-rights cases, that sexuality is a matter of identity, not conduct. In Romer v. Evans, he wrote the opinion striking down an anti-gay provision, saying it singled out a class of people for disadvantage. In Lawrence v. Texas, he said that no defensible reason could be provided for anti-sodomy laws, which again targeted a specific group. And in Windsor, he wrote that Congress set out to discriminate against gays when it passed DOMA.
Justice Scalia dissented in all these cases, cutting right to the core of each. In Lawrence, for example, he denied that there was any right to homosexual sodomy. Note the phrasing. Its not private sexual behavior in which a certain class of people engage. Its a specific kind of conduct. Act, not identity.
Now watch what happens when you follow each line of reasoning through to the current case.
If Obergefell and Arthur were trying to get married, then forbidding them from doing so is a double violation of the Fourteenth Amendment. It denies them access to the fundamental right of marriage, included in the due process clause. And it discriminates against them, violating the equal protection clause. (There are important legal differences in how each clause is adjudicated, but well leave those aside for now.)
If, on the other hand, Obergefell and Arthur were trying to get gay married, then it might be constitutional to stop them. Gay marriage is not a fundamental right, and its their conduct, rather than their identity, that is being restricted.
After three landmark cases in which Justice Kennedy has agreed that gay people are a certain kind of peoplenot just people who engage in a certain actit would be highly unlikely for him to reverse course now. Moreover, the LGBT side has briefed the case in exactly the way Justice Kennedy has framed earlier ones. They have avoided the question of whether some kind of heightened scrutiny is required, and said that marriage bans have no permissible rational basis. They have focused on how marriage bans create a second class set of citizens.
Is there any hope, then, for the traditional marriage side?
Absolutely, and the many pundits who have regarded this case as inevitable are, in my view, mistaken. It is the case that public opinion has come around, with between 55-60% of Americans now accepting of civil same-sex marriage. But public opinion is not the same as judicial reasoning, and Obergefell is no slam dunk.
The main reason is federalism. As Windsor itself relied upon, marriage has always been the states business, not that of the federal government. In a way, Obergefell would be the anti-Windsor, holding that a federal marriage right trumps the will of the states to define marriage as they see fit.
There is precedent for this, of course. Loving v. Virginia, the 1967 case that invalidated miscegenation laws (laws banning mixed-race marriage) found exactly that: a federal marriage right trumped the will of the states to define marriage as they saw fit. But that was about race, and a half-century of Supreme Court jurisprudence has shown that when it comes to constitutional law, race is different.
The states defending their marriage bans also pitch specific arguments to Justice Kennedy. They point out that a robust debate is taking place on this issue across America, and that a Supreme Court ruling would shut it down. They say that this really is a matter of state sovereignty. These are values Justice Kennedy has espoused in other contexts.
Notably, the states briefsunlike the 66 amicus briefs filed by opponents of same-sex marriagedont spend a lot of time on the pseudo-scientific evidence about same-sex families. Justice Kennedy has never bought into it, both because the science is junk, and because it is transparently not the real rationale for these laws. Rather, the states emphasize that this is a matter of reasonable civic debate, and the Court should let the democratic process unfold.
The smart money is still on the pro-LGBT side. Although the anti-gay side says that a Supreme Court ruling would shut off debate, it would more likely be seen as the next logical step in that debate. The Court would be swimming with the tide of history, not against it.
Moreover, conservatives have a Wingnut Problem. Every time a lawyer gets up to make a principled argument for traditional marriage, some bigot refuses to bake pizzas for gay people. For 20 years, Justice Kennedy has opposed that kind of anti-gay animus, and its increasingly hard for conservatives to pretend it doesnt exist, or that it isnt the real reason for anti-gay laws. Especially when a March for Marriage led by just those wingnuts is happening right on the Supreme Court steps.
Inside the building, though, a different story is being told, and its ending is far from certain.
http://www.thedailybeast.com/articles/2015/04/27/supreme-court-gay-marriage-win-is-no-shoo-in.html
Bio
Jay Michaelson (born 1971) is a writer and LGBT activist in the USA. His work involves spirituality, Judaism, sexuality, and law.[1] He is currently a contributing editor to The Forward,[2] newspaper, and a columnist at the The Daily Beast[3] Michaelson has twice won the New York Society for Professional Journalists award for opinion writing, most recently in 2014.[4] Michaelson is Jewish and openly gay and often works in the intersecting fields of LGBT people and Jewish traditions.[5]
Michaelson has held teaching positions at Chicago Theological Seminary, Boston University, Yale University, and the City College of New York with a focus on religion, law, and ethics. His 1998 Stanford Environmental Law Journal article[6][7] on geoengineering and climate change was described as "seminal" by Salon Magazine[8] and he is regarded as an early advocate of the policy.[9]
Michaelson was listed in the Forward 50 list of influential American Jews in 2009. He founded Zeek: A Jewish Journal of Thought and Culture in 2002 and Nehirim, an LGBT Jewish organization, in 2004. In 2009, his essay entitled "How I'm Losing My Love for Israel" generated substantial controversy in the Jewish world, including responses [10] from Daniel Gordis,[11] and Jonathan Sarna,.[12] Michaelson holds a Ph.D. in Jewish Thought from Hebrew University, and was ordained as a rabbi in 2013.
In 2013, Michaelson wrote a long-form report on the religious exemptions movement,[13] which gained prominence a year later in the Hobby Lobby Supreme Court case. He has been a significant public voice on the issue, appearing on NPR[14] and writing in Reuters[15] and other publications
http://en.wikipedia.org/wiki/Jay_Michaelson
okaawhatever
(9,462 posts)existence for millinea.
The empressof all
(29,098 posts)Our "romantic-ideal" of marriage is actually a relatively new concept. If we are honest with the history and feel a duty to legislate based upon it...How much should I expect then for marrying off my daughter?
okaawhatever
(9,462 posts)arcane1
(38,613 posts)It sure as hell sounds more like joining than changing to me! If they were trying to "change" it then it would have actual effects on "traditional" marriage, which it doesn't!
I know everyone already knows this, but it drives me crazy when they get away bullshit statements like that.