I challenge anyone to argue that SCOTUS will establish gay marriage as a right

Sure it does. Marriage is defined, generally (at least in the US) by State Legislatures. Ergo, it is what we say it is. You can call a pig a dog, but it's still a pig. Marriage, on the otherhand, and at the risk of being repetitive, is what we say it is.

 

Hmmm no- I want all consenting adults to be able to marry whoever they want- whether they are heterosexual or homosexual- I want every adult to be treated equally you do not.

Let me again compare- law forbidding mixed race marriage- law forbidding same gender marriage
Before black Sam can marry black Joan, but cannot marry white Jane.
After black Sam can marry black Joan, or can marry white Jane.

Before black Sam can marry black Joan, but cannot marry black Jim.
After black Sam can marry black Joan, or can marry black Jim.

In both cases, marriage becomes more inclusive- you want to keep marriage exclusive.

 

I will say that it is an extremely likely, north of 90%, that SCOTUS will in fact decide that same sex marriage is a right and will do so within the next three years. There is a clear path to do so, which I will outline below, and the only question is will 5 of the justices’ follow it. Four almost assuredly will: Ginsburg, Sotomayor, Kagan and Breyer. Three are a lost cause and will decent regardless of whether or not it is logical or makes sense legally, and they won’t care. We’re talking about Thomas and Scalia of course. 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 have prevented taking any action to recognize gay and lesbian citizens as a protected class was passed by voters in 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:In a landmark 6-3 ruling, the Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states

However, he also sided with the Boy Scouts in ruling that they may exclude gay scout masters citing First Amendment right of expressive association. Nevertheless, he 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.” More on DOMA below.

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 striking down the initiative was handed down in May 1996.
However, Gay rights advocates like the Human Rights Campaign say that Roberts has no paper trail on the issue as a judge. But they fear that his conservative Republican record, including his criticism of the right to privacy authorized by Roe, bodes badly for them. Maybe and maybe not, but his vote may not be needed.
As I said, the path is there for whoever follows it and in doing so, they would be on solid legal ground. It may well be that Kennedy and Roberts will simply be overwhelmed by the myriad of compelling reasons that there are for deciding in favor of marriage equality. And let’s not forget that the court is not immune to the influence of public opinion and is very much attuned to what is going on in the lower courts. The key is the level of scrutiny that the high court chooses to afford the issue as we will see below.
Next: The Path to Strict Scrutiny

 

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] 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.

In either case, when the SCOTUS decides to apply strict scrutiny to the right to same sex marriage, the marriage debate, at least in the courts is over.

The recent federal appeals court decision, finding the Defense of Marriage Act in conflict with the equal protection of the laws, guaranteed to all persons in the United States by the Fourteenth Amendment, broke new ground when the two-judge majority determined that a legal standard called “heightened scrutiny” should be applied to its review. Windsor v. United States of America is the first case where any federal court has taken this step.
http://www.examiner.com/article/how-heightened-should-judicial-scrutiny-be-for-gay-marriage-cases

Subsequently SCOTUS ruled that The Defense of Marriage Act, the law barring the federal government from recognizing same-sex marriages legalized by the states, is unconstitutional, the Supreme Court ruled Wednesday by a 5-4 vote.
"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

http://www.huffingtonpost.com/2013/06/26/supreme-court-doma-decision_n_3454811.html

Yes, the high court upheld 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……… the court’s majority ruled that the power of the individual state in defining marriage "is of central relevance" and the decision to grant same-sex couples the right to marry is "of immense import." The state, the court ruled, "used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community." The court held that DOMA "because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage."

DOMA’s "demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law," the majority ruled. "This raises a most serious question under the Constitution’s Fifth Amendment."

True , the court found a way to invalidate the section of DOMA that denied federal benefits to same sex married couples, while actually re-affirming the rights of the states to define marriage, and in fact enhancing their ability to bestow, or withhold, all of the rights and benefits of marriage on same sex couples.

However, it’s important to note what they did not say as well. 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, the U.S. Supreme Court overturned the convictions in a unanimous decision (dated June 12, 1967), dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
http://en.wikipedia.org/wiki/Loving_v._Virginia

There are two differences between Loving, and same sex marriage cases. One is that the right to same sex marriage has not yet been established, by SCOTUS to be a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment. Secondly, homosexuals have not yet been established to be a “suspect class” as are racial minorities which would afford them the right to strict scrutiny and thus compel the state to prove a compelling government interest in denying gays the right to marry http://en.wikipedia.org/wiki/Strict_scrutiny However, both of those factors can change:

In the Loving case. In 1967, 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.

Loving is actually one of Fourteen cases since 1888, where the SCOTUS has stated that marriage is a fundamental right of all individuals. In these cases, the Court has reaffirmed that “freedom of personal choice in matters of marriage” is “one of the liberties protected by the Due Process Clause,” “essential to the orderly pursuit of happiness by free men,” and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
http://www.afer.org/blog/14-supreme-court-cases-marriage-is-a-fundamental-right/

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.

So how close are the courts to establishing gays as a suspect class and as such applying strict scrutiny to the laws that adversely affect them? In the Proposition 8, 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", citing Loving v. Virginia and Griswold v. Connecticut. He went on to say that "race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage". Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational basis review (as he explains in the Equal Protection context), much less strict scrutiny. The point here is that Walker was willing to rule on the basis of strict scrutiny. http://www.ask.com/wiki/Perry_v._Schwarzenegger?qsrc=3044

And during the proposition 8 hearing at SCOTUS there was this exchange between JUSTICE SOTOMAYOR and Mr Cooper, attorney for the petitioners: http://www.livescience.com/28194-proposition-8-supreme-court-transcript.html
JUSTICE SOTOMAYOR: Outside of the -¬ 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 or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard. I think marriage is -¬
JUSTICE SOTOMAYOR: All right. If that -¬ 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? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
So what is the likelihood that gays will be declared a suspect class by SCOTUS? To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage. Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.” The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry. Of course, all these cases were about an individual state’s constitution — not the federal.

In addition, Colorado’s Supreme Court — in Evans v. Romer (1994) — 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.” A footnote in Romer does explicitly say that the Court “evidently agrees” gays are not a suspect class, but that was part of Scalia’s dissent – so it is not binding precedent.

In other words, the feds have not found gays to be a “suspect class” but arguably they never really said the opposite. What would have to be proven that gays are a suspect class?

It appears to me that it’s only a matter of time before the SCOTUS throws out every state ban on gay marriage and requires all states to afford gays marriage equality. They will be declared a suspect class and /or same sex marriage will be elevated to the status of a fundamental right, just as marriage per se has been

 

Moronic flame baiting and just plain equine excrement

 

You're making a mockery of a thread that started with an intelligent and thoughtful OP and are dragging into the gutter of stupidity an ignorance.

 

Well, I took your challenge over 24 hours ago and I disappointed, to say the least, that there has been no response. You haven't abandoned your own thread have you?

 

It's refreshing to hear from someone who is personally opposed to same sex marriage but who understands the constitution and understands the concept of equality under the law

 

There is certainly a need for SCOTUS to get involved. Without federal court intervention, it will be another hundred years before equality comes to all 50 states, if ever. This is not a confederation of states, it's a constitutional republic and the federal courts are tasked with upholding the constitution. I always amazed by the way that conservatives profess their love for the constitution, and then go bonkers when a federal court actually enforces it.

 

I prefer taking it all the way to SCOTUS. Duke it out. Get it done. Logic and the law is on the side of marriage equality

 

The point of Loving V. Virginia ( In case you don't know, that is what we're talking about) is that states rights, the states authority to define marriage has limits. No one is saying that sexual orientation is the same as race so you might want to drop that bovine excrement right now.

Second of all, your contention that you want gays to be part of mainstream society, by doing what? Discriminating against them? I's just more bovine excrement! Who the hell do you think is actually going to believe that? Do you want to hear about some people who I know? Gay people, who are very much a part of "mainstream society? Probably not but, but I'm going to tell you anyway:

I have new neighbors. They are a married Caucasian couple-both professional men in their early 30s. One is a school social worker, and the other is a financial advisor for a well-known investment house. They introduced me to their 3 year old African American, special needs child and said that he is their son, who they adopted through the state. His parents were killed in an auto accident a year ago and the child had been in 3 foster homes since then. There was no extended family able and willing to care for him. Special needs children, especially minorities are very hard to place and to find a stable home for, but these two men stepped up to take that responsibility.

I now know that in what little spare time they have, they do volunteer work with Habitat for Humanity, and occasionally deliver meals on wheels. They plan on having two more children by a surrogate mother with each of them donating sperm for that purpose. Each will then adopt the child of the other as the second parent.

Can you honestly tell me that these two men, who are contributing and part of mainstream to society and the community in many ways, do not deserve the benefits, protection and status of being married? Can anyone explain to me why it is more important to prohibit same sex marriage and adoption by gays than to allow this child to have the stability and security of having married parents? Can you say that this is not a family in every sense of the word? Please be honest and give your reasons.

 

You don't actually believe that those who oppose gay marriage will change their positions based upon a Supreme Court judgment, do you?

I don't think that the Supreme Court wants to hear one of these cases, and the truth is that they don't really need to, now that the states have gotten themselves busy clarifying the law.

 

No, but a generation or two down the road they'll mostly be gone through attrition.

It would make it better to have a final answer from the ultimate authority. That puts an end to the argument for good.

 

I don't check on all my threads every 24 hours. I usually check quotes within 24 though.

I'm glad you accepted. Obviously understand this is any academic exercise. From your post it looks like you certainly understand that the point is nothing about how the court should decide, but a debate regarding how it will decide. For this we will use a pretty simple debate structure (in an entirely new thread). Until the debate is over, only you and I will be allowed to post. The debate will be decided by 3 or 5 judges that we can trust to be impartial, and who will judge on the merits of the arguments, not based on which outcome they desire.

I'll start contacting judges. I can go first or you can go first but, on a good faith measure, it shouldn't matter. The three phases will be intro, body, and closing. Neither will post the second or third before the other has posted the previous round. The intros will be independent and NOT in response to anything said by the other. Bodies will carry a main argument and response to the intro. The closing can respond to anything made during the debate, but NOT to the other persons closing. This is designed this way so that a non-live debate can be as fair as possible.

Again, it will be judged based on the merits of the arguments alone. I will contact people I think would be suitable judges and, if they are willing, I will contact you via pm to get your approval on them. You are welcome (and encouraged) to do the same.

 

I've already discussed why the federal courts right up to SCOTUS must be involved. SCOTUS may not be relishing the thought of taking an actual marriage case, but I think that they will feel compelled to do so. We have all of these rulings but federal district judges hanging out there, many of which will be appealed all the way up the system. I can't imagine them not taking those cases, as important and volatile as this issue is.

 

Agreed. Sound quite interesting, and serious. It seems as though you already know what my introduction and main body is. Perhaps I jumped the gun, not knowing just what to expect. In any case, I'll be looking forward

 

If heterosexual marriage is not a right then neither should gay marriage be a right.

 

it has been established as a legal right.

 

But they both are.

 

Where in the Constitution is that written?

 

Due Process and Equal Protection Clauses. As has been found by over dozen courts now. You would think if your opinion held even ANY merit, the Court's decisions would not be unanimous. And yet, so far anyay, they have been.

 

The question is how long will Ginsberg stay on this court, and who will be nominating her replacement. I am personally very nervous that the timing has to go through a rather narrow window. I think there is a general reluctance by SCOTUS to shove this down the the gullets of the conservative South with anything sweeping, and considering that the appellate courts have been doing the heavy lifting and taking the heat, SCOTUS make like the way this process has worked state by state.

 

Where in the constitution is the right to own and Colt LE6920? Where are emails or cell phones written in the 4th amendment?

Are you under the mistaken impression that a right has to be written in the constitution for it to exist?

 

OK then, where is the specific amendment that identifies marriage as a right?

 

where is the specific amendment that mentions Colt LE6920's, emails or cell phones.

Are you still under the mistaken impression that a right has to be written in the constitution for it to exist?