The Fate Of Gay Marriage In The USA...

This is kind of political. But I think I'll post it here. Gay marriage in the the United States is safe. For now. Here's why.

Chief Justice Roberts' pro-life credentials are impeccable. But he's a decent man. And he would never upset a precedent like Obergefell v. Hodges. Look at how he voted on Roe v. Wade. Plus he believes in limited gay rights. I'm serious. Gorsuch believes in limited gay rights too. But he voted to overturn Roe v. Wade. I think he'd still vote to uphold Obergefell v. Hodges though. So that's 5-4 by my math in favor of Obergefell v. Hodges.

But only one more vote would be needed to overturn it. So get off your butt and vote next time. And encourage others to vote too. Even if you think your neighbor will vote against, encourage them to vote. The more people who vote, the better.

 

Nullifying existing marriages would be really extreme for a court which seems to be losing legitimacy. Who would write the opinion? Clarence Thomas?

 

Well, since we're stuck with Trump for at least four more years, I guess Gorsuch's vote will soon become lost in the shuffle anyways. But there is, though, the idea of the full faith and credit clause. The full faith and credit clause is found in Article IV, Section 1 of the US Constitution, and it mandates that each state respect the public acts, records, and judicial proceedings of every other state. The Law Dictionary by Steven Gifis says nothing, not even a charge of fraud or bias (like in a court of law), can overrule this clause. So, if you eloped to a state that practices gay marriage, they'd have to recognize it in your home state.

A couple of moronic GOP/rightwing nut arguments I've heard against this though. There was a local sheriff some time back, a while before Obergefell, but when they were already debating the gay marriage issue (I think Clinton was still president then), who said something stupid on a local talk show once. I think I know which one, and he was a Democrat too BTW. But I'm not sure, so he will remain nameless. But he said that the Supreme Court can overrule even well established constitutional rights, like full faith and credit, if they can show a compelling state interest. He didn't go into detail. And like I said, if he did I think us viewers would just be offended more anyways. But that compelling state interest nonsense was started by the so-called liberal Warren Court. And it says that the compelling state interest is one that is essential or necessary, not just desirable or convenient. Examples would be national security, protecting public health and safety, and preventing violence. So I don't know what that local sheriff was even talking about.

Or, one of those right wingnut idiots on the Supreme Court might say it's their job to thwart gays and LGBTQ at every turn, and stop their political agenda. That's not the purpose of an independent judiciary at all of course. But they have tried that in the past. Actually the Warren and Burger even seemed to do that at times. But then they'd have to show their logic in their opinions. They're all lawyers with high IQ's. So I'm sure they could do that. Someone could prove the moon was made of green cheese if they set out to do that and dedicated their life to that. But like I said, will fellow Republicans still buy it? And how long with that ruling stand?

I'm just saying where things stand, from what I understand.

 

I think your sheriff was a little confused on the compelling state interest/full faith and credit matter. It would take quite a showing of paramount interest for a state to show a compelling state interest in refusing full faith and credit to another state's laws. Maybe if a state tried to legalize polygamy, cannibalism, or the right to practice human sacrifice that might happen. It is, of course, possible for the Court to deny full faith and credit to gay marriage, abortion, etc. But if it did that, I think we'd be on a path toward a less free society and a more lawless one. And the problem wouldn't be the compelling state interest doctrine but the loose application of it. The whole point is that a state can't establish compelling state interest just by calling it that!

I, of course, didn't hear the sheriff, but he seems to have been giving his own ignorant spin to the Fourteenth Amendment, and the strict scrutiny test for state actions infringing on fundamental rights under the due process clause or the interests of suspect classes under the equal protection clause. Privacy and marriage are fundamental rights, and therefore protected under strict scutiny and the requirement of showing compelling state interest for abridging them. The idea of strict scrutiny and requiring a showing of compelling state interest was developed by the Court to protect our basic rights from state infringement. Nothing idiotic about it !

Ordinarily, state laws that have and adverse impact on individual rights or discriminate against individuals are given the benefit of the doubt if they have a rational basis grounded in the police power to protect the public health, safety, welfare, or morals of the community. But on matters involving the special category of rights that the courts consider "fundamental" (enjoying the highest degree of protection) or classes of people the courts consider deserving of special protection because of past history of discrimination, the courts apply the "strict scrutiny" standard of review--the infringements are presumed to be unconstitutional unless the state can prove: 1. a "compelling (i.e., especially necessary) state interest", 2. that the infringement is the "least restrictive means" of achieving the state's objective; and 3. that it is "narrowly tailored" to achieve that objective. These rights include those specifically mentioned in the Bill of Rights (Freedom of speech, press, religion, lawful assembly, jury trial, freedom from unreasonable searches and seizures, etc. Or those identified as such in judicial decisions (privacy, marriage, contraception, travel),etc. A "suspect class" is one having characteristics likely to make it a target of discrimination, based on past history, highly visible traits, being a "discrete and insular minority", etc. No nonsense there! And it doesn't argue against "full faith and credit" for marriage laws. I realize we've recently gone thru the Looking Glass when it comes to law and the Constitution, but don't blame it on the Warren Court. Without it, there would be no right to privacy at all, and therefore no "gay marriage. Clarence Thomas seems to be interested in overturning Obergerfell, but by throwing the constitutional right of privacy out the window, not by asserting a compelling state interest in denying married gays full faith & credit.