Shooting the Moon on Prop 8

But the brief also embraced a less demanding test, which is called “heightened scrutiny.” That requires laws that are allegedly discriminatory to serve an important government purpose, and to be closely related to that purpose. That is the standard that the Obama administration has adopted, in arguing against laws that discriminate on the basis of homosexuality.

This is going to be so interesting to watch over the next few months. Oral argument is the last week of March. The ruling should come down in late June.

Page 2 of 2 | Previous page

8 comments on this post.
  1. Bronze Dog:

    It’s certainly one line of argument I use in the blogging context. If they can ban same-sex couples from marrying, what’s to stop them from banning any other marriage? I don’t remember what the condition was, but when I was a kid, my mother had to have her ovaries removed, negating her ability to have more children. Could this proposition be used as a justification or a precedent to annul my parents’ marriage? What if she had turned ill before she married?

  2. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden:

    Risky appears to be the strategy of the day. And targeting Kennedy. Hmmm, seems like my comment on the other thread might just as easily be placed here.

    Although it’s also true I’m not a court watcher. I’m a post-decision reader (and not nearly enough of that, lately; I mean, if you’re talking about decisions of the current SCOTUS – reading decisions is actually all I do, lately). I don’t work with someone who ended up in first class next to Thomas on a long flight. I’m not friends of friends with someone who had dinner with Elena Kagan 2 weeks ago. I just have nothing in common with anyone on SCOTUS (that I know of, anyway) in terms of how my life is lived and who is in my circle. And, while philosophy counts for something, a huge amount of these decisions come down to justices doing what they think is the right thing. As Roberts has shown, that can involve quite the whirlwind of internal debate. If Roberts can’t predict where he’ll end up, then I certainly don’t have enough knowledge about the justices to go around predicting what they’ll do.

    All this is to say, maybe the DOJ & Olson/Boies strategy isn’t so risky after all. I certainly see the logic in it – both legal and political. Maybe with more knowledge of the court there’s good reason to believe that we can get the court to actually apply Korematsu and turn something particularly outrageous in US past into something that can be a tool for new and positive critical examination of life in our present moment.

  3. ottod:

    Without even looking at bios, there are at least 6, probably 7 of the supremes who either personally suffered discrimination as a minority (religious, ethnic, racial) or came from a family that did. Why should this decision not be obvious, or do some of us feel empowered to, you know, get even?

  4. whheydt:

    In a month, we’ll have reports on how the oral arguments have gone.

    In June we will almost certainly know what the SCOTUS decision is.

    If Prop. 8 is upheld, as a Californian, I epxect to see petitions circulated to repeal it…and given the opinion trends since Prop. 8 passed, and the tactical information gained since then as well, I expect such a repeal to pass.

    After that…I expect to see those that supported Prop. 8 crying to the courts to overturn the repeal and go against the “will of the people” that they have been touting though the current cases.

  5. Zeno:

    My commentary on Justice Kennedy is here. If he remembers his gay mentors and colleagues at the McGeorge School of Law, this is the ideal opportunity to honor them with equal rights.

  6. Childermass:

    whheydt @4: After that…I expect to see those that supported Prop. 8 crying to the courts to overturn the repeal and go against the “will of the people” that they have been touting though the current cases.

    That is a reason why it should be repealed even if the Supreme Court rules it unconstitutional.

    Also we don’t want to take the chance that the GOP wins the White House and appoints the judges that reverses the case.

  7. =8)-DX:

    “Oral argument is the last week of March. The ruling should come down in late June.”

    Whatever may be wrong with the legal system of the US, I am strongly envious of this. It takes literally YEARS to get anything done in the courts in my country.

  8. Nentuaby:

    =8)-DX:

    Don’t get *too* envious. This is a very late stage; the case has been filtering through our courts since 2009.

Leave a comment

You must be