08-05-2010, 01:27 PM
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Confirmed User
Industry Role:
Join Date: Apr 2005
Location: Vegas
Posts: 4,499
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Quote:
Originally Posted by Amputate Your Head
Supreme Court must uphold. This isn't about gun control. This is about a certain group of people's basic rights guaranteed by the Constitution. You don't get to vote on that, no matter how homophobic someone may be.
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You can continue to believe that it is a simple issue if you like, but the fact is that many gay activists were opposed to this lawsuit because they feared it would lose in the Supreme Court and therefore set back the cause of gay marriage for a long time. There are plenty of pro gay marriage people who are doubtful about the outcome in the Supreme Court.
Quote:
http://www.nytimes.com/2010/08/06/us...er=rss&emc=rss
Even some of those who applauded the opinion, however, said the path ahead for it was not clear or easy. Doug NeJaime, an associate professor at Loyola Law School, Los Angeles, said that while he considered Judge Walker?s ruling ?a great opinion,? he was skeptical that the strategy behind it would survive through the federal courts. Despite Judge Walker?s efforts to set a factual foundation and the traditions of deference, Mr. NeJaime said, the Supreme Court is not completely constrained by lower court findings of fact.
?We?ve seen time and time again that the Supreme Court can do whatever it wants? with the factual record, and ?I don?t see five justices on the Supreme Court taking Judge Walker?s findings of fact to the place that he takes them.?
Professor NeJaime suggested the case might turn on the court?s traditional swing vote, Anthony M. Kennedy, who has shaped decisions that struck down laws that discriminated against gay men and lesbians. The rational basis test used by Judge Walker is in line with the standard used by Justice Kennedy in cases like Lawrence v. Texas, which struck down a state sodomy law. By structuring an opinion that allows the Court to use the lower level of scrutiny, Judge Walker ?is speaking to Justice Kennedy,? he said.
Professor Jesse H. Choper, a professor of law at the University of California, Berkeley, said that it was too soon to tell which way Justice Kennedy might come down on the issue of same-sex marriage. ?I have no way of predicting how he?d come down on this, and I don?t think he does, either, at this point.?
Ultimately, Professor NeJaime said, even the four more liberal justices on the Court might shy away from a sweeping decision that could overturn same-sex marriage bans across the country. ?The Supreme Court rarely likes to get too far ahead of things,? he said.
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