Comments on More amicus brief in the Prop. 8 and DOMA casesTypePad2013-03-11T15:52:42ZRick Garnetthttps://mirrorofjustice.blogs.com/mirrorofjustice/tag:typepad.com,2003:https://mirrorofjustice.blogs.com/mirrorofjustice/2013/03/more-amicus-brief-in-the-prop-8-and-doma-cases/comments/atom.xml/N.D. commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41d40f9b970c2013-03-13T22:24:17Z2013-03-20T20:36:30ZN.D.Edward, regardless of location, a just Law is a Law that is grounded in truth, whereas an unjust Law is...<p>Edward, regardless of location, a just Law is a Law that is grounded in truth, whereas an unjust Law is a Law that is based upon a false pretense. </p>Edward Dougherty commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017ee944cb94970d2013-03-13T15:43:19Z2013-03-20T20:36:30ZEdward DoughertyProfessor Garnett, Thanks for your response! I guess (and I'm speaking as the layman that I am) I would have...<p>Professor Garnett,</p>
<p>Thanks for your response! I guess (and I'm speaking as the layman that I am) I would have a hard time seeing how DOMA does still not eclipse state laws, especially when it might come to military personnel, for example. Suppose you have someone in a same-sex marriage living in New York and they are also a member of the armed forces. His/her partner would be able to inherit his/her property should that person pass but the federal government would also not be required to allow the military benefits to pass on to the surviving partner? Could that also be used to deny the benefits at the state level, using DOMA?</p>
<p>Mr. Bowman,</p>
<p>I actually don't disagree with what you said in your first post. And I actually think that true states rights would be a very nice thing, keeping in conjecution with the Tenth Amendment, on issues such as abortion, SSM and embyroynic stem cell research. However, I really think that one is a federalist (or not a federalist) or someone who beleives that the courts should not make policy is dependent on the issue at hand. This was brought to mind when I heard Justice Scalia bemoaning the fact that the Voting Rights Act was almost untouchable by the courts because it had recently been renewed with a 98-0 vote in Congress. Certainly, unjust laws should not be kept untouched by the courts (Brown vs. Board of Education) as an example but I have a hard time beliving that the same forces that beleive that democratically enacted restrictions on abortion at the state level should be left untouched by the courts would be so sanguine regarding those same state legislatures passing laws allowing same sex marriage. Same thing for the folks last year who were hoping for the repeal of the individual mandate, forgetting that it was something done by our legislators who are supposed to do just that, legislate.</p>N.D. commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41d02e38970c2013-03-13T14:09:16Z2013-03-20T20:36:30ZN.D.Regarding the "mystery passage" there is a difference between recognizing a sovereign God and a sovereign god, and that difference...<p>Regarding the "mystery passage" there is a difference between recognizing a sovereign God and a sovereign god, and that difference makes all the difference.</p>Mike commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017c379a2a98970b2013-03-12T21:44:03Z2013-03-12T21:44:03ZMikeLet's not lose sight of the important questions: what does Charles Reid think about Anthony Kennedy?<p>Let's not lose sight of the important questions: what does Charles Reid think about Anthony Kennedy?</p>Matt Bowman commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41c8eb89970c2013-03-12T20:24:28Z2013-03-12T20:24:28ZMatt BowmanIf Michael had said, "Hey, Rick. This is the same Justice Kennedy who wrote the mystery passage" he would have...<p>If Michael had said, "Hey, Rick. This is the same Justice Kennedy who wrote the mystery passage" he would have a point. But then, in Casey, Kennedy went ahead and upheld most of the democratically enacted abortion restrictions anyway.<br />
</p>Bill Collier commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017ee93c4afb970d2013-03-12T19:22:38Z2013-03-12T19:22:38ZBill CollierIt takes a very self-aware person to stand, then stand corrected, and finally to stand uncorrected. :) Litigants are always...<p>It takes a very self-aware person to stand, then stand corrected, and finally to stand uncorrected. :)</p>
<p>Litigants are always going to bring constitutional challenges to legislative enactments, so shouldn't Justice Kennedy be preaching to his brother and sister justices about not granting cert? Perhaps that is his intended audience.</p>Rick Garnett commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017ee93be750970d2013-03-12T18:34:32Z2013-03-12T18:34:32ZRick GarnettThanks, Matt. I stand un-corrected. =-)<p>Thanks, Matt. I stand un-corrected. =-)</p>Matt Bowman commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017c3798b606970b2013-03-12T18:31:38Z2013-03-12T18:31:38ZMatt BowmanI think Rick was basically right the first time in his response to Michael. Justice Kennedy was only voting to...<p>I think Rick was basically right the first time in his response to Michael. Justice Kennedy was only voting to invalidate the individual mandate, and on the severability issue. But severability is not the same thing as invalidating the entire statute as such. Severability is an action that is deferential to democratically elected bodies, not disrespectful to them, because it assumes that if Congress apparently would not have passed the bill without the unconstitutional section, the Court should not do it in Congress' stead by a line-item veto. More importantly, nothing from Kennedy's vote would have prevented Congress from enacting PPACA again minus that one singular provision of the individual mandate. So Justice Kennedy was not substituting his policy will for the will of Congress. He was indeed focused on one specific measure that violates the constitution's limits on federal authority. Michael seems to suggest that one cannot oppose nine unelected lawyers making major policy decisions in a democracy, if one also believes in judicial review for constitutionality. Though liberals like to claim this is a contradiction, it is clearly not. People can believe that the constitution places some distinct areas off limits, and also believe that most everything else is a policy decision left to the democratic process not to judges. It is liberals, with their view of the constitution as a living evolving document, who would have trouble reconciling these two views of the judicial role.</p>N.D. commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41bf1e85970c2013-03-11T23:02:34Z2013-03-11T23:02:34ZN.D.Professor Garnett, I suppose one could argue that it is a self evident truth that a human person can only...<p>Professor Garnett, I suppose one could argue that it is a self evident truth that a human person can only conceive a human person, and that only a man and woman can exist in relationship as husband and wife, and thus the personal and relational essence of the human person, is not a matter of opinion.</p>Rick Garnett commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017c378ee89e970b2013-03-11T21:03:19Z2013-03-11T21:03:19ZRick GarnettJHW -- I stand corrected!<p>JHW -- I stand corrected!</p>JHW commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017c378eaeab970b2013-03-11T20:32:46Z2013-03-11T20:32:46ZJHWThe four-justice dissenting opinion Justice Kennedy joined in the ACA case did actually argue that the entire ACA should be...<p>The four-justice dissenting opinion Justice Kennedy joined in the ACA case did actually argue that the entire ACA should be struck down, since they viewed it as inextricably linked to the mandate provision those justices found constitutionally invalid.</p>Rick Garnett commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41bdcc40970c2013-03-11T20:06:32Z2013-03-11T20:06:32ZRick GarnettDear Ed -- it certainly would have undermined a lot of the ACA had the mandate been invalidated. But all...<p>Dear Ed -- it certainly would have undermined a lot of the ACA had the mandate been invalidated. But all kinds of things -- including the more popular things, like keeping kids on parents' insurance until 26 -- were not on the table. </p>
<p>In terms of your middle paragraph, I think there is a distinction between saying (as the Court is being asked to do by some) "every state is required by the Constitution to extend marriage to same-sex couples" and saying (as DOMA's defenders do) "the federal government is allowed to define, for its own purposes, what it will recognize as marriage). Saying the letter does not necessarily undermine the ability of states, "at the state level", to move to SSM. I don't understand Prof. George to be saying that the Constitution *requires* a single definition of marriage, applicable at both the state and national levels.</p>Edward Dougherty commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41bdc0da970c2013-03-11T20:01:09Z2013-03-11T20:01:09ZEdward DoughertyHi Professor Garnett, I hope all has been well with you and I forgot to tell you that I enjoyed...<p>Hi Professor Garnett,</p>
<p>I hope all has been well with you and I forgot to tell you that I enjoyed your segment with the gentleman from Emory University on Talk of the Nation a couple of weeks ago.</p>
<p>I actually agree with Justice Kennedy's observation in that these problems should be decided, as much as possible, in the legislative arenas of the states. Isn't that one of the (many) criticisms against Roe Vs. Wade is that it was an ovverreach in that it took away the power of the states regarding abortion legislation? And now we have folks like Professor George who seem to say that Federal power is o.k. when it regards marriage but not o.k. regarding abortion? I guess I ask this because I think that abortion, same sex marriage and other social issues should be best left at the state level. You can't force Mississippi into New York, California into Michigan or even Michigan into Indiana when you have 50 states as different as ours.</p>
<p>Also, regarding the ACA (and this could be my legal ignornance speaking) my understanding was that the striking down of the individual mandate would have taken down the ACA as a whole. That was my understanding following the many news reports on this issue or would that have been the media being inaccurate (again!)?</p>Rick Garnett commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017d41bcc38b970c2013-03-11T18:02:45Z2013-03-11T18:02:45ZRick GarnettThough, of course, he didn't vote to strike down "all" of the ACA, most of which was not at issue...<p>Though, of course, he didn't vote to strike down "all" of the ACA, most of which was not at issue in the cases last June. </p>Rick Garnett commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017ee930962e970d2013-03-11T18:01:39Z2013-03-11T18:01:39ZRick GarnettIndeed. Self-awareness is, now as always, elusive.<p>Indeed. Self-awareness is, now as always, elusive. </p>Michael Perry commented on 'More amicus brief in the Prop. 8 and DOMA cases'tag:typepad.com,2003:6a00d834515a9a69e2017ee9308906970d2013-03-11T17:54:51Z2013-03-11T17:54:51ZMichael PerryHey, Rick. This is the same Justice Kennedy who voted to strike down all of the Affordable Care Act?<p>Hey, Rick.</p>
<p>This is the same Justice Kennedy who voted to strike down all of the Affordable Care Act?</p>