Sunday, December 9, 2012


GAY MARRIAGE THE BATTLE IS WON - IT IS OVER - LET IT GO

I really did not want to do this post because I am actually opposed to all state approved marriage. It is beyond me why any rational human being would sign a piece a paper which turns over to the state the regulation of their marriage - my view is- which historical law supports - the government has no interest in marriage other than the capacity to consent, and its dissolution to protect children. In fact only during the early mid 19th century did state courts start to take an interest in the dissolution of marriage for the express purpose of protecting children. Eventually, these court decisions lead to state regulation of marriage.

For all you original intent experts - bigots hiding behind a term they know nothing about -
 
BLACKSTONE SUMMARIZED THE LAW ON MARRIAGE AT THE TIME OF THE AMERICAN REVOLUTION

I. OUR law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animae [for the health of their souls]. And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
William Blackstone: http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book1.15.html
 
JUSTICE KENNEDY - THE SWING VOTE

The worse case scenario for the gay community will be a 5-4 vote with Justice Kennedy voting for gay marriage - I think the vote may actually be 6-3 with Chief Justice Roberts writing a compromise opinion which still allows for gay marriage. We saw in the Healthcare law case Roberts put his historical image ahead of his personal bias. This is not new.  Chief Justice Roberts is all too aware of  late Associate Justice Roberts "Switch in Time Saved Nine"

A little known fact about Justice Kennedy - on the night of his nomination in 1987 (25 years ago) he left the press at his California home to attend a house warming party for new neighbors who just happen to be a gay couple.

There are two issues before the Supreme Court.  The first is DOMA.  Defense of Marriage Act - signed into law by President Bill Clinton. 

On this one the vote for sure will be at least 6-3 against DOMA - their is nothing in the federal constitution which can remotely be construed as allowing the federal government to regulate marriage - period - it also goes against everything the conservatives have argued about these matters being matters for the states.  If Scalia tries to rationalize the constitutionality of DOMA, I think among legal scholars he will be declared a fraud.  The vote on this one could actually be 8-1 with Alito  being to sole dissenting vote.

The other issue is whether or not the states through referendums can deny gays the same rights afforded straights.  This is the California case.

JUSTICE KENNEDY WROTE THE PRO GAY RIGHTS OPINION IN ROMER V. EVANS

"In 1992, an amendment to the Colorado state constitution (Amendment 2) that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class was passed by Colorado voters in a referendum"

"Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote:
To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."
ROMER OPINION



"Justice Anthony Kennedy wrote the majority opinion which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined.

He wrote: "The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

LAWRENCE V. TEXAS OPINION

There is absolutely no scenario wherein gay marriage does not prevail as the law of the land - but the Religious Rights rather than use their limited resources to feed the hungry, and heal the sick such as Joshua (aka Jesus) mandated, the Religious Right will spend their money fighting a lost cause. 

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