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Getting there.

If you haven't yet, read the full statements from the Supreme Court on DOMA:

http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh...

These are wonderful to read. Surprisingly, Scalia's dissent is possibly my favorite to read. The preceding opinions are very matter of fact, neutral, citing precedent and fully and clearly explaining how, why, and what the Court can and cannot do, why it is judging at all, and why it judges the way it does. It's very "textbook" speech.

Then you read Scalia's and it's like an internet rant. He's just angry and nasty and so painfully beneath a level of discourse someone in his position should be held to. But what's delicious about it is how - as he's blasting the majority for what he paints as their intentional paving-the-way for the eventual full equality they disappointingly fell short of today - he is in effect only highlighting and emphasizing what he is so vehemently in denial of even as he proves the point he's arguing against:

That equality is inevitable. That despite the majority's side-stepping gay marriage bans on the State level, there is no defending a State's right to deny marriage to same-sex couples. His own raving Dissent actually includes building the obvious eventual inevitable Court statements striking down State gay marriage bans.

I've still got to read the full statements on Prop 8, but the DOMA opinions were very clearly written with the prop 8 decisions in mind too. They exhaustively wave the line that States decide what Marriage means, not the federal government, which is the line they used to dodge ruling on the constitutionality of same-sex marriage bans. But there's no other way for this to go. It's only a matter of time before a case presents itself that satisfies the requirements to reach the Supreme Court and is a more direct case of Marriage inequality being fundamentally unconstitutional regardless of what the States say. It'll just be an enormous waste of resources and money (not to mention interim harm and mistreatment of people denied their rights) between now and when such a case goes through the motions. One of the majority opinions in DOMA even mentions exactly that kind of injury to the people and the system as justification for them to even judge on DOMA. So they could have spared COUNTLESS hours and taxpayer dollars by just taking that one more additional step and declaring all state-level bans on same-sex marriage as unconstitutional.

I think the only reason the prop 8 decision was intentionally limited to simply kicking it back to the lower court was because so much of their DOMA decision relied on "No, all this marriage stuff is up to the states to decide." Which is an understandable but still annoyingly frustrating bit of having to play the system rather than just fucking drop the gavel on bigoted bullshit and get this stupid fight over with.

I'll add to this or do an addendum journal after I get the chance to read the prop 8 opinions tomorrow. The sun's out, so I should probably go to sleep. XD

EDIT: Couldn't sleep, read the prop 8 decision, too. Full agreement with the dissenting opinion. The proponents of prop 8 absolutely had standing to appear in federal court. Dismissing their standing nullifies the whole Initiative process both in intent and function. I'm actually kinda pissed at the majority decision on that one. Severely. They had standing to appear in court, but it wasn't just a minor cop-out for the court to avoid having to make a judgment on that one, they set a precedent that is a seriously huge dismissal of state's rights.

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Added:	12 years ago 27 Jun 2013 12:59 CEST

23 Comments on this Journal

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Alfador

12 years ago

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Edited 12 years ago by Owner

I've got a bunch to say but here's one tidbit Scalia says: "[Windsor] won below [in a lower court], and so cured her injury" when the issue at hand was the fact that the IRS continued to withhold the refund she was owed by the lower court's decision, because factions within the government continued to defend DOMA. Funny, that doesn't sound like it was cured to me.

Alfador

12 years ago

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Edited 12 years ago by Owner

@ Alfador

Also, "This image of the Court would have been unrecognizable to those who wrote and ratified our national charter." as describing the power of judicial review. Funny, Alexander Hamilton disagreed. https://en.wikipedia.org/wiki/Federalist_No._78

"	For this reason we are quite forbidden to say what the law is whenever [...] "‘an Act of Congress is alleged to conflict with the Constitution.’” [...] We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.

Forgive me, but isn't that EXACTLY WHAT THIS CASE IS?!

Wolfblade

12 years ago

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@ Alfador

Her injury was cured in that the lower court had already ruled in her favor. I'm not sure, but I think that the IRS failing to refund her once she had that judgment would have to have been a second suit for failure to comply or something. Scalia's opinion seems to be that the Executive branch only withheld paying her to try and manipulate the system to allow the case to continue up to the Supreme Court. Which is very well possible. It really doesn't make much sense otherwise.

Alfador

12 years ago

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Edited 12 years ago by Owner

@ Wolfblade

Trying to follow the logical thread makes my head spin. Ah well.

*the opinions presented by the justices, not yours. But perhaps this is because I'm not a student of law.

Erkhyan

12 years ago

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There’s another way, of course. One can render the state DOMAs almost moot by bringing up the case that Loving v. Virginia already invalidated a State’s right to refuse to honor a marriage legally performed in another State. It’s just another half-step to full equality, but it works too.

Wolfblade

12 years ago

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@ Erkhyan

There's no end to the valid arguments supporting gay marriage. It's simple common sense. It's all just a matter of going through the motions and letting the system shut these people down.

Scalia's remarks about painting all the opposition to gay marriage as hateful are important. Not everyone opposed to same-sex marriage is acting out of hate. Plenty of them are acting out of simple greed and politics - the hateful parties make it lucrative to appear to support them - and plenty of others are acting out of purely innocent misguided ignorance caused by religion.

It is all a matter of time. Time to let education and empathy change the minds of all the people acting out of ignorance, reducing the amount of people and money supporting the idea, so the anti-gay-for-pay people will flip sides once it's not profitable anymore. THEN there will just be the openly bigoted and hateful people left.

RoareyRaccoon

12 years ago

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Lol there's way too much there for me to read and take in at the same time. Fucking waffling legal documents XP. I can't get past a few pages before feeling like I'm falling asleep, so there's no way I can stick through all 77 pages XP. Still though, at least some positive step has been taken at last.

Wolfblade

12 years ago

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@ RoareyRaccoon

Basic rundown for the DOMA majority was a VERY thorough and precise explanation of exactly how and why the Court does have jurisdiction to rule on it, and exactly how and why their ruling is correct. Scalia's dissent is just a deliciously vile internet-level rant against it because he hates gays and he doesn't like the decision. The other dissenting opinion is much more sensible as was focused mainly on disagreeing with the majority's opinion that the Court has jurisdiction to rule on the case.

The prop 8 majority was actually very upsetting to read, because when taking it into consideration outside of the context of this specific case, unless they ignore/reverse their stance the next time it comes up, they gutted the Initiative aspect of several states' governments. Basically, California and some other states have means by which the citizens can enact laws without needing their elected officials to do it. This was how prop 8 happened in the first place: enough signatures were gathered to put it on the ballot as an Initiative, and because of the extreme amount of money the Mormon church funneled into misinformation about what "prop 8" actually was, it passed the vote. However, the majority can't vote to deny rights to anybody. Obviously. So the measure was unconstitutional, and was found to be such, so the state government refused to enforce the Initiative despite it passing vote.

Now, under normal circumstances, if an Initiative is passed into law by voters, and there's nothing forcing the state Executive branch to enforce the law, then it nullifies the purpose of the whole Initiative process. It's THERE to give people a way to make a law desired by the people that their elected officials refuse/decline to enact themselves. It's so the people can govern even if those they elected to be their voice are failing in that duty. The California Supreme Court decided, rightfully so, that for the purposes of the whole Initiative concept, the proponents of an initiative DO have standing to represent the interests of their successfully enacted initiative if the state government is failing in its duty to enforce the law voted in by the citizens. Thus, the proponents of prop 8 were deemed as having standing to take their issue to the Supreme Court to get a ruling forcing the state government to enforce the law enacted by the people of the state.

The thing is: majority cannot vote to discriminate. A majority vote to deny someone their rights is invalid and unconstitutional. If the Supreme Court had chosen to judge on the case - as it absolutely should have - then there'd be no outcome but to have a federal Supreme Court declaration that a majority vote to deny rights to one group of citizens is unconstitutional, which would have essentially nullified all same-sex marriage bans.

That was not something they were willing to take the flak for, so instead they just threw the Initiative process itself under the bus.

The California Supreme Court's already existing decision that prop 8 was unconstitutional stands, and the two higher courts' decisions to allow appeal were vacated/nullified.

The majority's statements make it clear where they'd fall once they're forced to make a judgment on marriage equality, as well as the fact that they all see it as an inevitability - both the ones for and against it. That they so callously damaged a valuable state government function just to avoid having to make the obvious decision right now, is really quite upsetting. Overall, the news was amazingly good and it's a tremendous stride in the right direction for gay rights, but at the same time, it's like your team getting the ball across almost the whole field, then seeing your guy intentionally trip at the 5 yard line. :/

RoareyRaccoon

12 years ago

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@ Wolfblade

Ahh I see XP. Thanks for taking the time to write that man.

Wolfblade

12 years ago

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@ RoareyRaccoon

No problem. <3

Shokuji

12 years ago

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I bet that most of congress didn't actually read the court decision before being vocal about it, much like they don't read most of the bills that are proposed before voting on them. But incompetency and the lack of fact checking in our government is it's own problem. It's discouraging the snail's pace our society moves on social issues. Since we have only a 2-party government most of the angles about any issue is lost and it become about left vs right. We're living in a bipolar country and it's really screwing us over when it comes to progress. But getting back on-topic...

While it's nice to see some progress, but it does feel like '2 steps forward 1 step back'. I knew it wasn't going to be quick or easy, nothing worthwhile ever is, but there seems to be so much left to do. This ruling didn't make it much easier on anyone right away, seems like there's going to be a lot of squabbling on the state level for years to come before things finally get settled. I can only imagine the more conservative states will try to delay & deny as long as they can.

That's the part I don't understand the most; Why do certain people think they own something they really shouldn't, like marriage, and can define what it means or who it's for? Worse yet, they try to define who it's for in a way that causes lots of heart & head-aches for a select group(s) of fellow citizens, fellow human beings. It reminds me of the studies they've done where people tend to be more cruel to others if they can't see them. I just hope that more people start seeing more of their neighbors so they'll stop being so cruel to them.

In any case, the ball is rolling, time to get behind it and keep it plowing forward.

Wolfblade

12 years ago

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@ Shokuji

It's religion, pure and simple.

Religion isn't always the only cause of the hate, but it IS the only thing giving any legitimacy to the hate, it IS what caused perfectly good and not-hateful people to fight for hateful measures, it IS what makes it so extremely profitable for unscrupulous politicians to pander to the haters, and it IS the biggest obstruction to education and enlightenment that would enable people to be able to understand for themselves how this kind of shit is wrong.

Religion may not be the sole source of all this evil, but it IS what's blocking any real progress of anyone being able to stop all this nonsense.

The people opposing this stuff don't SEE the victims of their hate as being other equal human beings. At best they see them as lost sheep whose souls have to be saved by doing everything they can to prevent them from acting in the ways that will damn their soul, and even justifying the persecution as it DOES torment and coerce many people into warping their lives into avoiding their true natures. At worst, they simply only view like-minded people as actual concerns, and anyone disagreeing with their beliefs is less than human anyway. "You think the only people who are people, are the people who look and think like you."

The rise of secularism and atheism is hand in hand with a rise in the dismissal of so much "us vs them" mentality engrained not just in human culture, but in human psychology. It's a fundamental part of how our brains are evolved to function, but like all detrimental instincts rendered obsolete by society progressing faster than evolution can keep up; you can't hope for people to overcome their core programming without being made aware of it.

Two normal, sane, reasonable and intelligent people will generally agree that treating one person different from another based on arbitrary and irrelevant differences is wrong. Unless one of them is religious and the arbitrary and irrelevant differences is a difference in fundamental religious belief.

Norithics

12 years ago

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That's... honestly what kills me about the SCOTUS. Sometimes I'm glad they reach a decision in which I agree with the result, but I go back and look at it and I'm just... fucking completely unable to understand where they're coming from at all. It's a circus.

Wolfblade

12 years ago

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@ Norithics

I honestly haven't read too many of these before.

But this one just really pissed me off. When I read DOMA's rulings first, I figured that they >had< to dismiss the prop 8 case because so much of their argument to even have jurisdiction on DOMA was about "defining marriage is the state's domain." I thought "okay, they can't say that and then turn around and reject how a state did choose to define marriage."

Then I read the actual reasons for dismissing the prop 8 case, and just holy shit. It wasn't even close to an understandable twisting of the system to dodge taking too much flak all at once. They utterly shit on the state initiative concept by declaring that if a state manages to vote something into law circumventing their elected officials, there's absolutely no recourse for the people if the state chooses to just ignore it. It's nonsense. The damage that precedent could cause in the future is SO much worse than the heat they'd take from just doing what they obviously ALL feel is inevitable and simply declaring same-sex marriage bans as unconstitutional.

Whatever. Disappointing and frustrating, but it still just means that all that needs to happen is for someone to make a case against a state with a same-sex marriage ban, take it to court, and fight their way back up to the Supreme Court. It will have to be the pro-gay side making the case, losing at the state level, and then taking it further to the SC.

Norithics

12 years ago

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@ Wolfblade

Some people wonder if there's any politics in the SCOTUS. I personally wonder if there's anything else, because the legal wrangling is a complete sideshow.

Fate

12 years ago

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I don't think that same-sex marriage should be legal.

Hear me out.

I don't think that opposing-sex marriage should be legal, either. Marriage should, simply put, not be a legal institution. It's inherently a religious rite. That's fine.

You want to publicly declare your emotions towards another person? Great. Throw a party and tell everyone. You want them to have power of attorney if you're injured, declare them a member of your family, have them made next of kin? Awesome. At that party you're throwing, invite your lawyer. Do the paperwork, and hooray! If you want tax breaks, all that, fine. Form an LLC with your partner. Congratulations, now you have a tax dodge that anyone can apply for.

The core issue here is that the Christians are upset at people using their word. That's fine. Let them have their word, and strip it of all legal meaning.

shadycat

12 years ago

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@ Fate

I could almost be down with this, but marriage as it stands as a legal institution encompasses a thousand and more rights and responsibilities. Having to apply for each of these individually through a legal entity such as an LLC would be extremely onerous, not to mention expensive. I'm sure lawyers everywhere would love your plan, but those leeches get quite enough of our blood as it is.
As for Christians bitching (It was ever thus.) about the use of "their" word, I couldn't care less. Marriage predates their particular superstition, and even Biblical marriage, which was largely about property, hardly resembles modern Western marriage. Christian privilege is something to be fought against, not coddled.

Wolfblade

12 years ago

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@ shadycat

100% This. Yes.

Shokuji

12 years ago

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@ shadycat

Well done, sir. =3 Talk about marriage equality usually brings up 'traditional marriage' which always makes me think of this graphic: https://dl.dropboxusercontent.com/u/22763830/web/biblem...

luke01

12 years ago

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@ Fate

I'm sorry but this is just misguided. What I think you mean to do is to remove marriage from the civil vocabulary without removing the recognition of a personal relationship so important it represents a human partnership.

This is called a civil union. Different from marriage only in name and social importance. Only different in social importance because it's seen as less than full marriage.

Rewrite DOMA to say in Defense of Marriage we are getting the Government out of marriage. All instances of the word marriage in any US Code or regulation is hereby replaced with the term Civil Union. All documents on file must be reissued with the correction.

Bam! Problem solved. You get a civil union from the Government. You get a marriage from your priest or rabbi or whoever you want but the Government couldn't care less.

I really suggest you replace marriage with "something" rather than just eliminating it and having people take each "right or benefit" individually for the same lawyer reasons as Wolfblade explained.

As for your comment about forming an LLC as a tax dodge for any/all couples in lieu of the marriage tax breaks...I have to advise against that. First off, your W2 income from your employer would still get taxed and THEN when you filter it through this fake "shell company" it will get taxed again as income for the business. So you'd pay taxes twice. There's no way to have your wages exempted from income-tax so that you can transfer that income to your LLC and have the LLC get taxed.

If you are already self employed and get paid on 1099-MISC as an independent contractor OR through direct sales with cash receipting, then whether you choose to file Schedule C as a self employed person or form a partnership is a conversation you'd be having with yourself anyway regardless of marital status because whether your income source is an LLC partnership on Schedule K or Schedule C self employment does affect tax rates and expense reporting (deductions) but does not have any impact as to whether or not you're married.

The impact on marriage is combined income between spouses as used for calculating tax break eligibility or % caps and same for deductions and the main tax rates.

Combining your dual incomes through an LLC would affect the section of tax code that affects your individual tax rate BUT would have no impact on any of the things which would be affected by marital status.

In essence choosing to form an LLC affects your adjusted gross income but nothing further down on the tax form. Choosing to form an LLC to evade taxes by reporting income incorrectly can lead to fines or imprisonment...what's worse is if you're W2 employed then you're double taxing yourself and there's no benefit in terms of marital status.

This is because if you combine your income with an LLC then you would BOTH be paying tax on that income, for your portion of the "profits" which is no different than if you'd just reported it normally. It can't impact the section of the tax forms that are related to marital status. It only affects which tax code section taxes your personal income and which expenses or deductions you take off your income before AGI.

I'm not a tax expert, but I have a vague familiarity with some tax issues due to a past job (an agency I'm glad to no longer work for).

Also, your plan of doing benefits "piece meal" and in a no-marriage context doesn't address immigration. If you want a loved-one to get a green card and you are married, then it's guaranteed. If you love someone and don't marry them, you're S.O.L.

With marriage intact and adding gays...means gay marriage will result in immigration benefits for gay spouses which were previously denied.

Again, civil unions applied universally would have the same affect as marriage and remove the word.

I agree removing the word marriage from the Government might be nice, but I've given up on any notion that religion is something respectable and therefore I no longer value it's feelings.

ZephonTsol

12 years ago

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Simple as I may be, wrongheaded at times even, but personally speaking, I'm still grinning about TSC and their reactions. You're right on Scalia, too. Reading his was like reading a script from any internet reviewer who uses the word RAGE in their name, albeit with less swearing and just as much impotent griping.

We have a long way to go. Equality takes time if Women's Rights and Desegregation are anything to go by...and even then, it'll likely not be perfect or whole for even longer.

Still...It is nice to know I can be formally recognized as married to my foxy. However many points to or against anything that's happened, that's a simple fact that I can cherish.

CuriousFerret

12 years ago

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Edited 12 years ago by Owner

While Scalia pretending to care about the rights of homosexuals is comedic theater at it's best, I'm not surprised by the out come on Prop 8.

They didn't want to legislate from the bench after how well that went with Robert on Obamacare turning it into a tax not a fine.

They did the right thing in the wrong way hoping to keep the Fed out of state affairs, leaving it on the local legislatures to determine marriage law, while spitting in state rights.  It was a cowardly way to go about it.

There are considerations to be taken now, which is why passing marriage laws is so difficult beyond the bigotry of the right.  While we have the right to contract, we can not tell private institutions or religious institutions who can be part of their private groups.  We can not dictate to the church as it would be a violation of the 1st amendment.

To end the issue with any finality would require a Federal social marriage standard, that had no bearing on religious affiliation at all.  That would allow all the benefits DOMA had denied to all same sex partner in all states irregardless of how many bans they put up at a local level.

Depending on how the next mid term goes, that could happen, as more and more Republican Senators in office are supporting our rights.

For now the glass ceiling is cracked and ready to come down.

Knightwulf2001

12 years ago

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I have always said "Get government out of marriage."

Just make up a private contract for the joint rights you give to each other. Everything else is none of anyone's business but those involved.

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