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What a Day

First, RIP Howard Zinn and JD Salinger. Strange to lose such great men on the same day. Perhaps they’d been keeping themselves alive for the State of the Union. I think there’s a John Adams and Thomas Jefferson story to be had under there.

Tonight at 8pm PST, the online test to qualify for Jeopardy! is available. You should go do that.

Scalito proved himself to be a horrific activist politician rather than an impartial judge last night. My level of hope for a reasonable decision on Prop 8 diminishes each time I consider the fact that Scalia and Alito exist.

And there was a study out today saying that gender didn’t matter in parenting.

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SCOTUS thoughts continued

Would it be possible for the Supreme Court to declare Prop 8 unconstitutional because it allows some gays to be married but not others, while not actually ruling on the constitutionality of gay marriage in general?

Who will vote how on Prop 8; Supreme Court Justice breakdown

So, I’ve been trying to figure out how I think SCOTUS breaks down for the Prop8 vote.  I am going to be fairly optimistic based on the quality of the argument and Olson’s record with SCOTUS up to now.  Argued over 50 cases in front of SCOTUS, has won 3/4ths of them, including the decision today that said Corporations have freedom of speech and therefore can spend as much as they want on politics.  He’s clearly good at getting SCOTUS to expand rather than deny rights, no matter the public opinion.

Of course, there are 6 Catholics on the bench, and the Catholic Church, along with LDS, was responsible for most of the mobilization in support of Prop 8.  Anyway, in my optimism, I think it’s even possible for a 6-3 decision declaring Prop 8 unconstitutional.  Of course, 5-4 against is just as possible. No means declaring it unconstitutional, yes is saying prop 8 should stay.

And if anyone has any insight, feel free to post. These are mere conjectures based on what I can find on the interwebs.

JUSTICE ROBERTS

Pros: He donated legal to Romer vs. Evans which demanded equal rights for gays in Colorado. Fairly constructionist approach to Constitution, which is how Olson is making his case.

Cons: Catholic, part of the conservative block (though he has broken with them before), really into states rights

Vote: Likely yes, but some foundation for a surprise no

JUSTICE STEVENS

Pros: Staked out the anti-sodomy laws position in the mid-80s as a dissenting opinion, which eventually became the majority position in 2003. Considered part of the liberal block. Not Catholic.

Cons: None that I can find, though there’s nothing suggesting he’s particularly Pro gay marriage either.

Vote: Probably No

JUSTICE SCALIA

Pros: Just the one, he’s a big fan of the Constitution and Olson is making a very very strong argument.

Cons: He hates gay people. He’s the leader of the conservative block. Catholic. And he really hates gay people.

Vote: Burn all gay people at the stake Definite Yes.

JUSTICE KENNEDY

Pros: Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. Though considered conservative, often a swing vote. References foreign law for precedence often.

Cons: Conservative more often than not. Catholic.

Vote: Likely No

JUSTICE THOMAS

Pros: None

Cons: Extremely conservative. Extremely into states rights. Performed a wedding for Rush Limbaugh. Even Scalia thinks he’s way too far to the right, “I am an originalist, but I am not a nut.” Super into religion, and thinks that religion should be allowed to be a lot more involved in public life. He also hates the gays.

Vote: Not just Yes, but a Yes to the RIGHT of Scalia

JUSTICE GINSBURG

Pros: She is awesome and my favorite. (Also liberal, pro-choice, pro-gay)

Cons: None

Vote: No

JUSTICE BREYER

Pros: Liberal. Refers to foreign law. Seems to like the gays.

Cons: None that I’m aware of.

Vote: No

JUSTICE ALITO

Pros: Was against anti-sodomy laws well before the court, but also was a student.

Cons: Conservative. Known as “Scalito”, though definitely to the left of Scalia. Catholic.

Vote: Almost certain Yes… but maybe…

JUSTICE SOTOMAYOR

Pros: Some of the anti-Hispanic rhetoric exhibited by the yes on 8ers will probably not make her think highly of them. She lives in Greenwich village. Considered an ally, though little to support this.

Cons: Catholic.

Vote: Likely no, little to go on though.

4 extremely likely nos, 1 probable no
3 almost certain yeses, 1 most likely yes

Scalia in Lawrence V. Texas

Not that I’ve been reading supreme court opinions or anything but Scalia’s dissenting opinion basically says that the decision in Lawrence V. Texas means that Same Sex Marriage should be legal.  Excerpts below, bolding by me.

Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

[…] This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

[…] One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

[…] At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Full horrifying opinion here, where he says he’s got nothing against the gays, he just thinks they’re going to hell.