o****g
发帖数: 657 | 1 Most of the facts here can actually be found in the archives of the Supreme
Court, and I formed my opinions after reading Jeffrey's Toobin's The NINE,
which is a nice summary about the recent history of the supreme court of the
u.s. of a.
Current sitting justices in the supreme court of United States are,
conservative judges Justices Clarence Thomas, John Roberts, Antonin Scalia,
Samuel Alito; liberal judges Justices Ginsburg, Stephen Breyer, Sonia
Sotomayor, Elena Kagan; and the perpetually-known-as-the-ultimate-swing-vote
-on-the-court, Justice Anthony Kennedy.
Kennedy's notion of liberty actually includes protection of privacy, which
then again expands to the protections of sexual orientation. He's well
travelled, therefore, some of his decisions are influenced by the legal
practices from foreign countries and institutions. Famously yet
controversially, in his majority opinion on Lawrence vs Texas, he quoted
British Parliament and European Court of Human Rights, to support his
argument that western cultures have not always despised and persecuted
homosexuals. While he embraces some of the liberal ideologies (pro-gay and
pro-choice), he is essentially a conservative justice, especially during his
early terms, which were replete of rightist votes. After the previously
swing vote Sandra O'Connor retired in 05, he got the title of the "swing
vote", which he explicitly resents. But despite his support for protection
of homosexual acts and abortion rights, he is still a much more conserved
justice than O'Connor. Out of 16 cases that he was the swing vote deciding
ideological differences at issue, he sides with the conservatives 11 times
and the liberals 5.
And as I have pointed out, his support for gay rights essentially stems from
his idea of protection of individual privacy rather than sympathy for this
community. Look at the argument he made in the majority opinions of Lawrence
vs Texas
"They seek to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals. The liberty protected by the
Constitution allows homosexual persons the right to choose to enter upon
relationships in the confines of their homes and their own private lives and
still retain their dignity as free persons."
"(1) the fact a State’s governing majority has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a
law prohibiting the practice, and (2) individual decisions concerning the
intimacies of physical relationships, even when not intended to produce
offspring, are a form of “liberty” protected by due process."
"Petitioners’ right to liberty under the Due Process Clause gives them
the full right to engage in private conduct without government intervention."
All his arguments (including the quotes from Justice John Paul Stevens)
are based on the notion that homosexual conduct is a personal liberty, and
should be protected under the Equal Protection Clause. He did vote to strike
down an anti-gay legislation in Colorado in Romers vs Evans, but that case
was about one state and he simply permitted, but not required equal
protection for LGBT community. The issues about gay marriage is a whole new
level of challenge to his conservative standing. If he makes the protection
for gay marriage a bounding precedent, then any state bans on gay marriage
will be unconsitutional. They will have to grant homosexual couples their
rights to "marriage", which to many conservatives in America is of such
religious sanctity that it most likely will result in large waves of
opposition.
Justice Kennedy is never an avant-garde judge, and he will most likely
not allow that to happen. While he had no problems striking down
dimiscriminatory laws towards homosexuality, it might be too much for him to
go against half the country by allowing gays to marry. | g********d
发帖数: 4174 | 2 我可能对法律的认识没有你深，但是，
目前所有的DOMA案子都只是挑战SECTION 3，所以不是关于gay marriage,而是关于
State Sovereignty, State Sovereignty其实是个保守派观点。你前面说过PROP 8
案子会赢，这和你说的“While he had no problems striking down
dimiscriminatory laws towards homosexuality, it might be too much for him to
go against half the country by allowing gays to marry.”矛盾。实际上很多
legal experts认为DOMA案子比PROP 8案子赢的可能性大。
确实一半人反对GAY MARRIAGE，但是别忘了还有一半人支持，而且支持的人越来越多
。所以最后的结果是折衷，废除SECTION 3，保留SECTION 2，5-6年这样的预测，不
是太离谱，5年前想想废除DADT也是不可能的。当然没有实现之前，任何猜测都是猜测
（包括对JUSTICE KENNEDY 的猜测）。 | m******1
发帖数: 19713 | 3 世界变化快啊，过往的pattern不一定还适用于当今。
记得去年NY州长选举的时候，我到Rainbow号召投Cuomo，结果就有人骂，说宁可投共和
党也不会去投这个两面三刀的小人（这不是原话，但大概就是这个意思），人们对他的
这个负面印象就是源于他过去当AG的时候给LGBT开了空头支票。但是民意变得太快了，
他这一上台马上就把同性婚姻的事提到日程上来了，连我都觉得有点出乎意料的快。如
今的形势与2年前真是不能同日而语了，我们还是要乐观一些。
对了，你是不是以前在本版发帖的那个很懂法律的那个ID？那个人的ID是p打头的，我
不记得是什么ID了。欢迎你以后多写一些这种有技术含量的帖子，我们这里懂法律的太
少了。
Supreme
the
,
vote
【在 o****g 的大作中提到】
: Most of the facts here can actually be found in the archives of the Supreme
: Court, and I formed my opinions after reading Jeffrey's Toobin's The NINE,
: which is a nice summary about the recent history of the supreme court of the
: u.s. of a.
: Current sitting justices in the supreme court of United States are,
: conservative judges Justices Clarence Thomas, John Roberts, Antonin Scalia,
: Samuel Alito; liberal judges Justices Ginsburg, Stephen Breyer, Sonia
: Sotomayor, Elena Kagan; and the perpetually-known-as-the-ultimate-swing-vote
: -on-the-court, Justice Anthony Kennedy.
: Kennedy's notion of liberty actually includes protection of privacy, which
| o****g
发帖数: 657 | 4 Ooops... I forgot I entitled it DOMA while in actuality I was talking about
the case against PROP 8...
Regarding DOMA, I think Justice Kennedy might not extend his support on gay
rights to realms like the definition of marriage. Because it means federal r
ecognition of the word "marriage" redefined, which is unacceptable to most o
f the conservatives in this country. At least up till now I did not see any
solid logical argument for or against redefinition of the word marriage,
because it is not an issue of logic, instead it's more about public
perception and impact of religion. Marriage law is actually a big part of
the christian church ever since its beginning. The close relationship
between marriage and theology shapes the modern perception of the word "
Marriage", which is why the conservatives will never give up the exclusive
use of this word to indicate an institution between a man and a woman.
I'm deeply frustrated sometimes, because some gay activists believe that the
ultimate goal is for gay people to get married, and anything short of that
is not enough and not worth pursuing. However, to me, the rights that come
with the marriage institution are more important than the name itself, and
very much so worth fighting for. As President Obama quoted Voltaire, we
cannot let the perfect become the enemy of the necessary. I look forward to
a day when we can get married and enjoy the full rights of the heterosexual
couples, but before that I'm more than willing to give up the name in
exchange for the rights.
8
to
【在 g********d 的大作中提到】
: 我可能对法律的认识没有你深，但是，
: 目前所有的DOMA案子都只是挑战SECTION 3，所以不是关于gay marriage,而是关于
: State Sovereignty, State Sovereignty其实是个保守派观点。你前面说过PROP 8
: 案子会赢，这和你说的“While he had no problems striking down
: dimiscriminatory laws towards homosexuality, it might be too much for him to
: go against half the country by allowing gays to marry.”矛盾。实际上很多
: legal experts认为DOMA案子比PROP 8案子赢的可能性大。
: 确实一半人反对GAY MARRIAGE，但是别忘了还有一半人支持，而且支持的人越来越多
: 。所以最后的结果是折衷，废除SECTION 3，保留SECTION 2，5-6年这样的预测，不
: 是太离谱，5年前想想废除DADT也是不可能的。当然没有实现之前，任何猜测都是猜测
| o****g
发帖数: 657 | 5 no i'm not him.
and i'm just informed on issues of the justice system and current political
issues on gay marriage. I believe everybody can discuss these issues as long
as they are passionate enough about them and well read enough to have a
basic understanding of american society.
【在 m******1 的大作中提到】
: 世界变化快啊，过往的pattern不一定还适用于当今。
: 记得去年NY州长选举的时候，我到Rainbow号召投Cuomo，结果就有人骂，说宁可投共和
: 党也不会去投这个两面三刀的小人（这不是原话，但大概就是这个意思），人们对他的
: 这个负面印象就是源于他过去当AG的时候给LGBT开了空头支票。但是民意变得太快了，
: 他这一上台马上就把同性婚姻的事提到日程上来了，连我都觉得有点出乎意料的快。如
: 今的形势与2年前真是不能同日而语了，我们还是要乐观一些。
: 对了，你是不是以前在本版发帖的那个很懂法律的那个ID？那个人的ID是p打头的，我
: 不记得是什么ID了。欢迎你以后多写一些这种有技术含量的帖子，我们这里懂法律的太
: 少了。
:
| g********d
发帖数: 4174 | 6 again, 对Justice Kennedy的猜测只是猜测，就像4个自由派法官判反同的westboro
church有言论自由一样，Kennedy也可以判MA州有State Sovereignty，现实是在几个
州marriage已经被重新定义。DOMA的Section 2强调State Sovereignty，而Section
3剥夺State Sovereignty，在90年代可以不追究它的逻辑，而现在一点不讲逻辑是越
来越不行了。联邦终究要承认STATE MARRIAGE，到2016年MA的同性婚姻已经12年了。
另外，如果OBAMA能连任，最高法院的构成也不是一点没可能变的更好，也许就不用命
悬Kennedy这一根线了。
关于CU还是MARRIAGE，你可能要BENEFITS就行了，但是人家反的是marriage和任何类似
marriage，HI和WA就是例子。少要点，就能早点close the deal？还是多要点，至少能
得到点？我不知道。
期待你的更多帖子，也期待有别人能从更乐观的角度深度分析PROP 8和DOMA。 | m******1
发帖数: 19713 | 7 至于是不是一定要marriage这个名号的问题，本版以前讨论过很多次了，但是太零散，
现在一时也找不到，只找到这一个：
http://www.mitbbs.com/article_t/QueerNews/12519061.html
about
gay
r
o
any
【在 o****g 的大作中提到】
: Ooops... I forgot I entitled it DOMA while in actuality I was talking about
: the case against PROP 8...
: Regarding DOMA, I think Justice Kennedy might not extend his support on gay
: rights to realms like the definition of marriage. Because it means federal r
: ecognition of the word "marriage" redefined, which is unacceptable to most o
: f the conservatives in this country. At least up till now I did not see any
: solid logical argument for or against redefinition of the word marriage,
: because it is not an issue of logic, instead it's more about public
: perception and impact of religion. Marriage law is actually a big part of
: the christian church ever since its beginning. The close relationship
| o****g
发帖数: 657 | 8 There are analyses out there claiming the strategy Obama is tackling the
problem of DOMA is trying to drive a wedge between the cultural right, and
the federalist right, while the former is strictly anti-gay, the latter
actually recognizes and respects state sovereignty. But again, on issues
regarding DOMA, these twpo sectors of conservative america might be
discordant, but on the gay issues in general, they do share similar negative
attitudes.
I agree, Justice Kennedy might repeal DOMA Sec 3 based on state sovereignty,
which I have not given too much thought to until now. But again, I have to
emphasize again he's not a progressive judge, and he likes to play it safe.
The oldest sitting judge is actually a liberal judge Justice Ginsburg... so.
.. I'm not really optimistic that we'll see a democratic majority in the SC
in the forseeable future... :(
again, 对Justice Kennedy的猜测只是猜测，就像4个自由派法官判反同的westboro
church有言论自由一样，Kennedy也可以判MA州有State Sovereignty，现实是在几个
州marriage已经被重新定义。DOMA的Section 2强调State Sovereignty，而Section
3剥夺State Sovereignty，在90年代可以不追究它的逻辑，而现在一点不讲逻辑是越
来越不行了。联邦终究要承认STATE MARRIAGE，到2016年MA的同性婚姻已经12年了。
另外，如果OBAMA能连任，最高法院的构成也不是一点没可能变的更好，也许就不用命
悬Kennedy这一根线了。
关于CU还是MARRIAGE，你可能要BENEFITS就行了，但是人家反的是marriage和任何类似
marriage，HI和WA就是例子。少要点，就能早点close the deal？还是多要点，至少能
得到点？我不知道。
期待你的更多帖子，也期待有别人能从更乐观的角度深度分析PROP 8和DOMA。
【在 g********d 的大作中提到】
: again, 对Justice Kennedy的猜测只是猜测，就像4个自由派法官判反同的westboro
: church有言论自由一样，Kennedy也可以判MA州有State Sovereignty，现实是在几个
: 州marriage已经被重新定义。DOMA的Section 2强调State Sovereignty，而Section
: 3剥夺State Sovereignty，在90年代可以不追究它的逻辑，而现在一点不讲逻辑是越
: 来越不行了。联邦终究要承认STATE MARRIAGE，到2016年MA的同性婚姻已经12年了。
: 另外，如果OBAMA能连任，最高法院的构成也不是一点没可能变的更好，也许就不用命
: 悬Kennedy这一根线了。
: 关于CU还是MARRIAGE，你可能要BENEFITS就行了，但是人家反的是marriage和任何类似
: marriage，HI和WA就是例子。少要点，就能早点close the deal？还是多要点，至少能
: 得到点？我不知道。
| m******1
发帖数: 19713 | 9 估计在Obama的任内，会有人逼劝Justice Ginsburg辞职，她不仅年纪大而且还有癌症
，她自己应该也不想变成LGBT的千古罪人。
negative
sovereignty,
to
.
【在 o****g 的大作中提到】
: There are analyses out there claiming the strategy Obama is tackling the
: problem of DOMA is trying to drive a wedge between the cultural right, and
: the federalist right, while the former is strictly anti-gay, the latter
: actually recognizes and respects state sovereignty. But again, on issues
: regarding DOMA, these twpo sectors of conservative america might be
: discordant, but on the gay issues in general, they do share similar negative
: attitudes.
: I agree, Justice Kennedy might repeal DOMA Sec 3 based on state sovereignty,
: which I have not given too much thought to until now. But again, I have to
: emphasize again he's not a progressive judge, and he likes to play it safe.
| g********d
发帖数: 4174 | 10 确实是可能性不大。而且Ginsburg身体不好，应该在今明年退休。否则OBAMA不能连任
，换上一个保守法官，就彻底没戏了。
The oldest sitting judge is actually a liberal judge Justice Ginsburg... so.
.. I'm not really optimistic that we'll see a democratic majority in the SC
in the forseeable future... :(
【在 o****g 的大作中提到】
: There are analyses out there claiming the strategy Obama is tackling the
: problem of DOMA is trying to drive a wedge between the cultural right, and
: the federalist right, while the former is strictly anti-gay, the latter
: actually recognizes and respects state sovereignty. But again, on issues
: regarding DOMA, these twpo sectors of conservative america might be
: discordant, but on the gay issues in general, they do share similar negative
: attitudes.
: I agree, Justice Kennedy might repeal DOMA Sec 3 based on state sovereignty,
: which I have not given too much thought to until now. But again, I have to
: emphasize again he's not a progressive judge, and he likes to play it safe.
| g********d
发帖数: 4174 | 11 记得HRC的president Joe Solmonese曾说过如果DOMA在2017年还没有废除，你们才应该
找OBAMA算账。当时大家气的不行了，其实Solmonese的计划和估计是合理的。再说国会
废除DOMA的可能性，这一届国会（至2012年）的可能性是零。但是，不代表下一届也是
零。有空再回你另一贴关于OBAMA和民主党是不是gay friendly。 | g********d
发帖数: 4174 | 12 http://washingtonexaminer.com/opinion/columnists/2011/02/states
States should be allowed to disagree on gay marriage
By: Steve Chapman 02/27/11 9:05 PM
President Obama has been denounced by Republicans for asserting federal
power at the expense of state sovereignty. But last week, he was denounced
by Republicans for ... not asserting federal power at the expense of state
sovereignty.
It happened after the Justice Department announced it would not litigate to
uphold the Defense of Marriage Act (DOMA). The president thinks one section
of the law is unconstitutional -- a section that prohibits the federal
government from recognizing same-sex marriages.
In practice, that means married homosexuals lack all sorts of privileges
extended to married heterosexuals. They may not file their federal taxes
jointly, claim various tax breaks, collect Social Security survivor benefits
if their partners die, or take advantage of spousal benefits granted to
military personnel and veterans.
Ozzie and Harry may be lawfully wedded in Iowa, but to the federal
government they are the legal equivalent of Colin Powell and Charlie Sheen:
holding nothing in common.
Obama would like to change that. If DOMA were to be struck down, the federal
government would no longer insist that some marriages transacted under
state laws are valid and some are not. It would tell states: You decide who
can get married, and we'll abide by your judgment.
You want to let gays walk down the aisle? Knock yourself out. You want to
deny them the joys of matrimony? Be our guest.
Such deference has always been the norm. There's a range of matrimonial
policies between Hartford and Honolulu.
Some states allow 14-year-olds to wed with parental and judicial consent,
and others don't allow marriage until age 17 no matter what. Some states let
first cousins get married, and some don't. Some states used to forbid a
black person from marrying a white person.
The federal government has never gotten mixed up in deciding which states
are right and which are wrong. It has always had a simple rule: Show us the
marriage certificate.
Until same-sex unions came along, that is. DOMA passed in 1996, when it
looked as if Hawaii would let gay couples marry. If opponents of gay
marriage couldn't prevent a state from enacting it, they figured, they could
impede and stigmatize it by singling out same-sex partners for inferior
treatment by U.S. government agencies.
For anyone attached to our constitutional tradition and federalist framework
, this policy is a mistake for two reasons: It thrusts the national
government into a matter where it has no business, and it enforces an
irksome uniformity on states with diverse mores and cultures.
DOMA is a double standard writ large. The feds respect the choices made by
the people of Mississippi and Michigan, but not those embraced by citizens
in Vermont or Connecticut.
But the law is not entirely hostile to federalism. It expressly upholds it,
in fact, when it says no state has to recognize a same-sex marriage from
another state.
That's as it should be. Since Texas has the power to prevent its citizens
from entering into same-sex marriages within its borders, it should not have
to respect the same-sex marriages of residents who jet off to say their
vows on Martha's Vineyard.
If Texas had to recognize gay unions transacted elsewhere, its law against
same-sex marriage would be a grand irrelevancy. Federalism says each state
gets to decide for itself, without being trumped by laws enacted elsewhere.
Even if DOMA were to be struck down or repealed, though, this practice would
endure. In his 2006 book, "Same Sex, Different States," Northwestern
University law professor Andrew Koppelman writes, "There is not a single
judicial decision that holds that (the Constitution) requires states to
recognize marriages that violate their own public policies concerning who
may marry."
But if Texas is entitled to decide who among its people gets all the
benefits of marriage, New Hampshire should have the same right. Right now,
it doesn't. Under DOMA, the federal government respects state authority to
do only what it approves, which is a pitiful kind of sovereignty.
Getting rid of DOMA would be a recognition that America has room for more
than one policy on same-sex marriage. The bad news is the people of the 50
states may never agree on the issue. The good news is we don't have to.
Examiner Columnist Steve Chapman blogs daily at newsblogs.chicagotribune.com
/steve_chapman. To find out more about Chapman, and read features by other
Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web
site. |
|
