Senate The Supreme Court

Discussion in 'Community' started by Ghost, Oct 9, 2011.

  1. GrandAdmiralJello Moderator Communitatis Litterarumque

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    Yeah like KK's saying -- only part of DOMA is dead, the part that denies federal recognition and benefits etc. It's the 5th Amendment DP clause that's operating here, not the 14th.
  2. ShaneP Ex-Mod Officio

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    I never thought it was right to deny people recognition and financial benefits.
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  3. Kimball_Kinnison Force Ghost

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    Except that there are some potential future issues as a result of this ruling.

    Traditionally, the federal and state governments have always exercised dual sovereignty. Within their own sphere of influence, they are usually considered to be independent. That means that a state has traditionally been free to define a specific term in law one way, while the federal government was free to define it another.* This sort of discrepancy between state and federal definitions has never been seen as a federalism issue before.

    With this ruling, the Court has basically said that the federal government is bound by however a state decides to define "marriage". Conceivably, what then happens when or if a state decides to recognize polygamous marriages (which is not necessarily inconceivable in the next 20 years)? Will this then require the federal government to accept a polygamous definition of marriage from that state (including recognition and financial benefits)? Are there other areas of law (besides marriage) in which this same principle will apply? What other state definitions will now be forced on federal laws, and which ones will continue to operate under dual sovereignty?

    On that basis, while today's ruling might be considered the best social outcome, I fear that the legal basis for it will cause innumerable problems for decades. That is often the danger of trying to use the courts to push for social change (particularly things that have had rapidly increasing public support), rather than working through legislative means of change.

    * For example, certain types of air guns can be defined as a firearm for purposes of state law, but not be considered firearms under federal law.
  4. ShaneP Ex-Mod Officio

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    That may have been the tradition but states and municipalities operate under statute now, with the federal government being the final arbiters and determining factor of what is deemed appropriate for states and localities.

    Gordon Wood even talks about how the state sovereignty philosophy ended post-Civil War. It doesn't exist today. The national government is the final arbiter and the people exercise their sovereignty through the national government.
  5. Kimball_Kinnison Force Ghost

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    That's false, unless the 10th Amendment has been repealed. The powers not granted to the federal government are reserved the the states. In areas where both have some measure of authority (such as commerce), their powers are independent of each other, with the federal powers supreme in the case of a direct conflict.

    That's why, for example, there are no double jeopardy issues when a person faces both state and federal prosecution for some crimes. Double jeopardy only applies when the same sovereign attempts to prosecute a person twice for the same act. Because the states and the federal government are separate sovereigns, a person prosecuted by one is not protected from prosecution by the other for the same act. (In fact, that played greatly into the Civil Rights Act's provisions allowing people acquitted of civil rights violations in state courts to be prosecuted in federal courts.)
    Last edited by Kimball_Kinnison, Jun 26, 2013
  6. Point Given Mod of Literature and Community

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    Guess the LDS blew $20 million for nothing. It warms my heart
  7. ShaneP Ex-Mod Officio

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    Yes, but feds started marking overlapping cases with petites in the '50s to lessen those overlaps. That struck at the heart of what you just talked about with double jeopardy. Also, increase in federalization of crimes has lessened the states role over the last few decades.
  8. Jedi Merkurian Episode VII Thread-Reaper

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    I love an observation someone made on teh interwebz, namely that the SCOTUS is displaying a modicum of media savvy in the timing of releasing their decisions regarding the Voting Rights Act and DOMA.
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  9. GenAntilles Force Ghost

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    Satisfied with the ruling. Wish the Court would've just been done with this whole issue and ruled polygamy and incestuous marriage legal too. Now we have to inevitably deal with those 20 and 40 years from now.

    Also I'm not being sarcastic. If we allow heterosexual and homosexual marriage we have no legal reason to deny it to polygamous and incestuous couples. Fair is far.
  10. ShaneP Ex-Mod Officio

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    The government shouldn't be involved in the marriage business. The only thing they should do is make sure it's consenting adults.
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  11. Kimball_Kinnison Force Ghost

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    In what way? The principle of dual sovereignty is very much alive and well today, even with the federalization of crimes over the last several decades. That's why you have a lot of differences between state and federal crimes, and the difference between local, state and federal law enforcement.

    For example, most drug crimes that are charged and prosecuted are done on the state level, not the federal level. And yet, that hasn't changed the fact that some states are more permissive than federal law and others are more restrictive. Under federal law, pretty much all marijuana use is prohibited, but on the state level that didn't stop Colorado from legalizing some use.

    Similarly, under federal law, it's legal for me to carry a handgun on school property in Virginia (because I have a CHP issued by Virginia), but Virginia law prohibits me carrying on school property. In contrast, federal law prohibits an unlicensed person from carrying within 1000 feet of school property (outside of certain defined exemptions), but Virginia law allows anyone to carry right up to the property line. The fact that there is a federal law criminalizing the behavior has no control over whether or not the state law is valid. Both sets of laws apply simultaneously.

    Part of that is because the states are not required to enforce federal laws (nor are federal agents required to know or enforce local or state laws). Smoking marijuana might be illegal under federal law, but the Denver PD isn't required to enforce that, nor can the local prosecutor charge you with violation of federal crimes (that falls to the US Attorney). States can choose to enforce federal law (within certain limits), but they cannot be required to do so. That is directly because of dual sovereignty.

    It's not a zero sum game. Just because the role of the federal law enforcement has increased over the last several decades doesn't mean that the power of the states has declined in that time. The two powers are independent of each other.
    Last edited by Kimball_Kinnison, Jun 26, 2013
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  12. KnightWriter Administrator Emeritus

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    Well, after today, I'm sure the anti-sodomy law in Virginia makes even more sense to bring to the Court. Right?

    Or maybe not.

    We'd get more Scalia rage, though. That's always worth something.
    Last edited by KnightWriter, Jun 26, 2013
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  13. Condition2SQ Jedi Grand Master

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    Is it even possible to speculate what would have happened if Proposition 8 had gotten to the merits? Kennedy's DOMA opinion at first blush would seem to indicate he would have struck it down, but I'm not quite sure. He places a deal of emphasis on the fact that the States had chosen to bestow the dignity and legitimacy of the marriage bond on homosexual couples. I could easily see that he would view it as a equally legitimate if a State chose not to extend it to homosexual couples. What makes me think otherwise, though, is that if Prop 8 were going to be upheld on the merits, Scalia never would have voted to deny standing.

    EDIT: All the idiots on Twitter displaying their total ignorance by expressing shock and outrage that Justice Sotomayor was "for Proposition 8" epitomizes why I was always so uncomfortable with the discourse surrounding this case. People seem to think that what was before the Court was "Is anti-homosexual bigotry morally reprehensible?", not a complex matter of federalist jurisprudence.
    Last edited by Condition2SQ, Jun 26, 2013
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  14. Kimball_Kinnison Force Ghost

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    Based on the article you posted earlier, it seems that there's at least a valid constitutional question, and the case itself has nothing to do with gay rights.

    For those who didn't click on KW's earlier link, the case he's referring to concerns a 47-year-old man who was convicted under the sodomy law for soliciting a 17-year-old girl to commit sodomy. As the article points out, Lawrence v. Texas addressed the question of two consenting adults. As the age of consent in Virginia is 18 (with an exception of 15-17 year olds if their partner is also under 18), the case here deals with an adult and a minor who is unable to legally consent.

    Simply put, this isn't a case that involved the due process or equal protection concerns raised in Lawrence, which were the basis for ruling the Texas law unconstitutional. (In fact, based on the fact pattern in the Virginia case, it is completely different than the holding in Lawrence. Lawrence specifically held that a law making it illegal "for two people of the same sex to engage in certain intimate sexual conduct violates the Due Process clause." In fact, the holding itself specifically stated:
    As such, Lawrence doesn't really apply to this fact pattern (as described in the article), and it's a separate constitutional question.
  15. KnightWriter Administrator Emeritus

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    I think you missed my point.
  16. Juliet316 Chosen One

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    And Congress blew $3 million + of taxpayer money only to see part of DOMA go down in defeat.
  17. Darth Guy Chosen One

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    Wait, wasn't there supposed to be a ruling regarding affirmative action in colleges because some entitled white idiot thinks African-Americans taking up 5% of the University of Texas's student body is too much and they need to know their place?
    Last edited by Darth Guy, Jun 26, 2013
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  18. Juliet316 Chosen One

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    That was Monday, they essentially punted it back to that lower courts, while saying states needed stricter critieria in order to consider race as part of college admissions.
  19. Darth Guy Chosen One

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    Oh. Well, at least they didn't side with entitled white idiots.
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  20. Ghost Chosen One

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    Scalia has basically become the Supreme Court's official troll.
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  21. shinjo_jedi Force Ghost

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    Scalia's dissent today was astounding in it's hypocrisy and bending to adjust to his worldview. Money quote: "We have no power under the Constitution to invalidate this democratically adopted legislation." He even plays the victim: "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition."

    Then there's his unhinged tirade about how the law does what it's supposed to do and defend "traditional" marriage.
  22. Juliet316 Chosen One

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  23. GrandAdmiralJello Moderator Communitatis Litterarumque

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    Scalia is a great champion of gay rights. Just like his Lawrence dissent, his Windsor dissent admits that this ruling leaves no credible basis for bans on gay marriage.

    Kimball -- what does this have to do with dual sovereignty? I haven't had a chance to read Windsor yet but news reports have it as a 5th amendment DP decision -- the part about FFC is left standing. So the section of DOMA that was struck down was done so for other reasons than incompatibility with state laws.

    And like -- all this does is return us to the PRE-DOMA status quo with the only difference that states now issue yay marriage licenses.


    Misa ab iPhono meo est.
  24. Darth Guy Chosen One

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    Section 2 is still law, so it's not exactly the pre-DOMA status quo, right?
  25. Condition2SQ Jedi Grand Master

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    Apropos polygamy, just because the definition of marriage may be elastic enough to accomodate same-sex couples doesn't mean the definition is infinitely elastic. Words have meanings.

    Apropos incest, here's what's crucial to me: While there's nothing wrong with consensual adult incest, I think it's imperative that incest remain taboo. If incest is viewed as completely benign by society, and people are brought up to embrace it, suddenly you're going to have fifteen year old boys everywhere having "consensual" sex with their twelve year old sisters. Not that this never happens anyway, but I see no compelling reason to make it exponentially more widespread