SCOTUS in the News

Going to be an interesting week for the Court. They are having hearings now on both DOMA and California’s same sex marriage ban. We won’t know their decision for a while. My guess is that they will strike down parts of DOMA and possibly California’s amendment but on very narrow grounds that fall short of declaring a “right” to marriage. That would be my preferred outcome at this stage. I would prefer that this issue not be resolved by the Court. And given the dramatic shifts in opinion — Mark Warner and Claire McCaskill just changed their positions and a new poll shows majority support in Ohio — I suspect the gay marriage proponents will get what they want through the democratic process very soon. By the time the 2020’s roll around, I expect gay marriage to be legal in a majority of states no matter what the Supreme Court says.

The more interesting ruling came today in Florida v. Jardines. This is case where a “drug-sniffing dog” was brought onto someone’s porch without a warrant and his subsequent alert used as probable cause. There wasn’t much hope for this since the Court decided earlier this year, unanimously, that drug-sniffing dogs constitute an infallible drug detection mechanism and therefore their use does not constitute a search. This, despite overwhelming evidence that drug-sniffing dogs are anything but infallible and often simply reinforce the predisposition of their handlers.

But the Court ruled in favor of Jardines on privacy and trespass grounds. This will prevent blind searches of people’s homes using the dogs so it’s at least something. Interesting, supposed fascists Thomas and Scalia decided with the majority while supposed liberals Kennedy and Breyer were with the minority.

The Court has been chipping away at our Fourth Amendment rights for some time. It’s nice to see the brakes applied or once.

Comments are closed.

  1. Mook

    I would prefer that this issue not be resolved by the Court.

    The issue was “resolved” in 2008 when liberal blue state Californians voted to pass Proposition 8. Courts nullified that legitimate vote overstepping their bounds of authority. If CA or other states want to have another vote, fine. What’s not fine, however, are courts usurping the results of democratically held elections for political reasons.

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  2. Thrill

    Barr’s article confuses me. I understand the idea of getting rid of the federal definition for marriage as far as DOMA is concerned, but does that also mean that he wants states that don’t want gay marriage to be forced to recognize gay marriages performed in other states?

    He really isn’t clear on that.

    In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

    It’s because of federal law (the Constitution itself) that states have to recognize the validity of each other’s marriages. Barr doesn’t want DOMA and doesn’t want a Constitutional amendment preventing states from having to recognize same-sex marriage. I’m just not clear on what he is saying.

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  3. pfluffy

    Thrill, I can’t find an answer to that question wrt Bob Barr. I wish dwex would join us; perhaps he could address the constitutional issues. Specifically, marriage is protected across state lines. Without DOMA, are states constitutionally bound to recognize same sex marriage? Interesting question. It is tempting to say, “of course they are”, but I expect a flood of state legislation to be introduced that bars said recognition and a subsequent SC case. Perhaps the justices will do us all a favor and clear that up.

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  4. Thrill

    Without DOMA, are states constitutionally bound to recognize same sex marriage?

    I hate to speak for dwex, but I’m pretty sure he would say it’s a no-brainer on FF&C and 14th Amendment Equal Protection grounds. This is what I think too.

    The only real alternatives I can see are for acceptance of same sex marriage by all states or an amendment that resolves the question. Barr is completely up in the air on the former and firmly against the latter.

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  5. pfluffy

    I hate to speak for dwex, but I’m pretty sure he would say it’s a no-brainer on FF&C and 14th Amendment Equal Protection grounds. This is what I think too.

    Oh, I agree with you. I hope to hear what others have to say about the constitutionality.

    The only real alternatives I can see are for acceptance of same sex marriage by all states or an amendment that resolves the question. Barr is completely up in the air on the former and firmly against the latter.

    Barr has done a complete about face on this. He thinks that it is an equal rights under the law issue and would not like to see an amendment. He doesn’t, however, think that the Federal government should define marriage at all (as you have already pointed out).

    I see where you are going with this. It does leave huge gaps.

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  6. Mississippi Yankee

    I believe Elana Kagan should recuse herself on this ruling due to conflict of issues. C’mon, ain’t nobody doing anything to miss fat and dumpy. And probably Ruth Badar (there’s more dust in my vag than the Grand Canyon) Ginsburg. Hell a simple caress would snap her like a twig. Oh and Breyer, I think could go either way ;-0

    The most amazing part is that you Ameritopians don’t realize this is all a fore-gone conclusion. Just like Affirmative action, amnesty for illegal immigration (again) or foreign aid to known enemies. Your feeble suggestions aren’t even recorded much less considered.
    Your “betters” will let you know the where, when and also how much it will cost you.

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  7. Hal_10000 *

    The issue was “resolved” in 2008 when liberal blue state Californians voted to pass Proposition 8. Courts nullified that legitimate vote overstepping their bounds of authority. If CA or other states want to have another vote, fine. What’s not fine, however, are courts usurping the results of democratically held elections for political reasons.

    Baloney. If the state passes a law that violates equal protection provisions of the 14th amendment, that law is invalid no matter how many people voted for it. The people do not have the right to bypass the Constitution. The Courts have struck down popular provisions on racial segregation, miscegenation and other issues many times and should if those provisions violate the Constitution. That’s what Courts are for. Saying this issues was “resolved” in 2008 is like saying Obamacare was resolved in 2008 and the Court shouldn’t have even considered overturning it.

    The issue is whether this violates the equal protection clause. I can see the argument one way (“the government should give equal protection and benefit to all marriages”) and the other (“you can’t give equal rights to things that are not equal”). I expect the Court to hold to the latter.

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  8. CM

    Your “betters” will let you know the where, when and also how much it will cost you.

    I’m sure they’ve already selected the guy you’ll be forced to marry.

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  9. Mississippi Yankee

    I’m sure they’ve already selected the guy you’ll be forced to marry.

    I’ll bet he won’t have a dick… Shit it could be YOU then…. The Horror!

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  10. Hal_10000 *

    One other point: Prop 8 was “resolved” by less than 5 points. Latest poll shows it would probably lose by 20+ points if it came up today. This is why I prefer California unpass Prop 8 rather than have SCOTUS overturn it.

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  11. Thrill

    This is why I prefer California unpass Prop 8 rather than have SCOTUS overturn it.

    Eh. Why postpone the inevitable? If not California now, it will be somewhere else later.

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  12. Mississippi Yankee

    This is why I prefer California unpass Prop 8 rather than have SCOTUS overturn it.

    Ah Yes, spoken like a true progressive. The Al Frankin and Christine Gregoire campaigns felt the same way… keep voting and keep counting until you get the desired results.

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  13. Mississippi Yankee

    As a follow up to Thrill’s comment:

    Hal will you be requiring a re-vote in the 30 other states who’s referendum vote also banned same-sex marriage?

    And will you also be as democratically inclined when public opinion sways concerning say…abortion, or affirmative action changes from black to brown? How about Sharia Law in certain communities?

    You’re on a slippery slope there skater.

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  14. Hal_10000 *

    The reason I would prefer this to go democratically is simply practical: I think the Court overturning it would create a political problem much as Roe v. Wade did. That having been said, if the Court persuades me that it is unconstitutional, I’ll support that decision. As I said, the reason we have Courts is precisely to void when democracy transgresses the Constitution. At this point, I’m just not 100% convinced of the anti-Prop 8 logic.

    MY, I have no idea what you’re on about. I won’t “require” anything; I would like to see the states go back and overturn (new poll today shows majority support for SSM in Ohio). And who are you calling democratically inclined? No one around like that, partner. You may have read in this same post that I was glad SCOTUS rolled back some of the liberties taken with drug-sniffing dogs. I thought Heller was a great decision. I think Kelo was one of the worst decisions of my lifetime. I thought Raich was badly decided. I support the Court being activist … when I am convinced that our liberties are at stake.

    For those specific issues, I’ve long opposed affirmative action. And sharia law would pretty clearly violate the establishment clause.

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  15. Mississippi Yankee

    And sharia law would pretty clearly violate the establishment clause.

    And yet there is Dearborn Michigan.

    And how did you feel about the Clinton Assault Weapons Ban? Or about the possibility of another?
    No one has ever been able to get you to commit, one way or the other, concerning the Tea Party either.

    Hal you have both selective and “rear view mirror” libertarian tendencies. Have you ever thought about a career in politics? Yanno unless you’re an asteroid predictor your profession won’t mean much in the NWO.
    Just some food for thought…

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  16. Mook

    Baloney. If the state passes a law that violates equal protection provisions of the 14th amendment, that law is invalid no matter how many people voted for it. The people do not have the right to bypass the Constitution.

    Your strawman analogies are not applicable here. The DOMA does not prevent states from sanctioning gay marriage. Do polygamists and mothers who want to marry their adult sons have similar “equal protections” to marry? There’s no substantive difference between those groups and gays in an equal protection legal sense. And how does defining marriage involve “protection” in any meaningful way? Gays are not disenfranchised and oppressed as were blacks decades ago, and it’s dishonest to make the comparison. It’s an emotional comparison, not a rational one.

    This is not some slam dunk obviously unconstitutional law. The courts are inventing rights and protections out of thin air here for purely political purposes and shitting on democratic elections in the process. The DOJ certainly advised that DOMA was constitutional when it passed. States have traditionally defined and policed marriage, divorce, child custody, and prostitution. Are whores in FL not getting the same “equal protection” as whores in certain counties within NV?

    Hal says that he prefers that it not be settled in the courts, but then he defends the courts usurping democratic elections on trumped up BS justifications.

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  17. Thrill

    The DOMA does not prevent states from sanctioning gay marriage.

    No, but if a gay couple marries in Massachusetts and then moves to Alabama (where the marriage is non-existent), so that they are deprived of, say, state income tax deductions normally allowed for married couples; wouldn’t that possibly qualify as an Equal Protection violation? Hell, a gay couple legally married in Massachusetts is deprived of multiple federal provisions even while living within their own state.

    Do polygamists and mothers who want to marry their adult sons have similar “equal protections” to marry?

    Oh, there’s no doubt one of those issues will be coming up within the decade. I’d bet on it.

    The DOJ certainly advised that DOMA was constitutional when it passed.

    Obama’s and Bush’s DOJ both also implied that they could treat American citizens on US soil as enemy combatants at one time or another.

    Hal says that he prefers that it not be settled in the courts, but then he defends the courts usurping democratic elections on trumped up BS justifications.

    The only way to stop the Court from requiring states to accept gay marriage once DOMA is struck down is to ratify a Constitutional amendment that explicitly says that no state is obligated to recognize any marriage as valid unless it is one man and one woman. It’s true that the states have always defined marriage for themselves, but it’s also true that they have to recognize each others’ under the Constitution.

    This issue doesn’t affect me either way and I’m indifferent to the outcome. I too hate to see the states forced to accept something that the people of those states find objectionable, but I think the gay marriage crowd has the Constitution on their side. We’ll know for sure soon enough.

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  18. Thrill

    Why would anyone be against love and marriage? It’s an institute you can’t disparage.

    What do the local gentry have to say on the topic?

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  19. Xetrov

    No, but if a gay couple marries in Massachusetts and then moves to Alabama (where the marriage is non-existent), so that they are deprived of, say, state income tax deductions normally allowed for married couples; wouldn’t that possibly qualify as an Equal Protection violation? Hell, a gay couple legally married in Massachusetts is deprived of multiple federal provisions even while living within their own state.

    I have a CCW permit in Arizona. When I go to California, do they have to respect it and allow me to conceal carry?

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  20. Mook

    I have a CCW permit in Arizona. When I go to California, do they have to respect it and allow me to conceal carry?

    Excellent point.

    Like Thrill, I’m somewhat indifferent as to the outcome of this ruling. What bothers me is the judicial activism involved. You don’t immediately invalidate the results of a democratic state election unless there’s a damn clear reason to do so. And in this case there was no such clear justification.

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