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If Loving versus Virginia came before the current SCOTUS
How do you think the vote would split? 5:4 or 4:5?

Also posted at Dreamwidth, where there are comment count unavailable comment(s); comment here or there.

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I'd love to see a Loving vs. Virginia retrial featuring star witness President Obama as the child of a mixed-race marriage who was dooooooomed to failure.

Well, that marriage DID fail...

And the child is an admitted drug user and the head of the world's largest criminal organization.

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Scalia said today that the result in Loving was inherent in the intent of the 14th Amendment's equal protection clause. I think he was trying to trap the anti-Prop. 8 team into saying same-sex marriage was too so he could say nuh-uh, but they didn't take the bait.

But if I remember correctly*, the supporters of the 14th Amendment were very explicate that it wasn't. I suppose they _could_ have been lying to get it ratified, but that seems unlikely.

*Don't have textbooks accessible, too lazy to Google it.

Scalia can tell they really intended that using his originalist mental powers.

To be fair to Clarence Thomas, I do think he'd be on the side of the angels in this one. Probably.

It would be rather bizarre of him to suggest that his own marriage wouldn't be Constitutionally valid in the state where he actually lives, so.

You're assuming intellectual consistency on the part of an American conservative, which is almost always a major mistake.

Thomas would remain intellectually consistent, and divorce his wife.


Sorry, just had to get that out.

And yes, I do know about the whole social control and money issues, respectively, that got them in, salivating. But I'm a genuine conservative*, and marriage is a private matter of individuals' rights.

(*It is possible you may not know any others.)

How do you keep government out of marriage?

In a property-based society, marriage has to be entangled with property rights, right? And government is also going to be entangled with property rights. So how do you keep those two things from touching?

For a moment I thought you might be conflating the obligation of any government to protect property with its employees being granted the authority to decide who people may make private contracts with, but I'm sure nobody would willingly take such a position in public.

So I'm sorry for ascribing that to you, however briefly.

But as a result of my thinking being tainted by that shameful assumption, I can't figure out what you do mean.

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It's the governments business to enforce contracts. It is not the government's business to write contracts, and it most particularly isn't the government's business to re-write the terms of a contract without consulting or even informing the participants.

Nice try, you True Scotsman, you.

Now that is an interesting and funny response.

Bless your furry little heart. And, no, I do not mean that in the Southern sense of the phrase.

I don't know that usage anyway.

It sounds awfully interesting, though.

6:3. Scalia, Thomas, and Alito would be the dissent because it's about equality and they're a priori agin' it. Kennedy and Roberts aren't dumb enough to get caught on the wrong side of history, this far in - Kennedy's mostly internalised that other people are people, and Roberts would never want to be That Chief Justice forever.

(Fun fact: I keep wanting to say "Rogers", not "Roberts", while discussing the USSC. Chief Justice John Rogers would be a very different (and better) thing, I think. Chief Justice John Waters, also hilarious. John Rogers and John Waters co-starring in "Chief Justices: Together They Fight Crime" is a TV show I would watch.)

(These are the places my mind goes, sometimes)

6:3 what? This isn't a binary choice -- the Court has multiple options available to it, and given Kennedy's attitude during the arguments and Robert's unwillingness to rock the boat, we're looking at the narrowest possible ruling at best. More likely, they'll punt and decide that the Prop-8 supporters lack standing.

The original question James posted was "If Loving v Virginia came up today, how do you think the vote would split?"

And my thought is that Loving v Virginia, in front of the USSC 2013, would rule the same way it did back then, 6:3.

And then I digressed off into Supreme Court Action Heros Starring Comedian/Writers And Cult Directors. Which I would still watch.

The "lacks standing" option seems to be the smart money among the lawyers I read. Or, if six Supremes agree, they can "dismiss as improvidently granted" and it'll be as if the Supreme Court had denied cert. in the first place, so the appeals court ruling will stand without precedential value outside of the one circuit.

Edited at 2013-03-27 08:40 pm (UTC)

Wouldn't "lacks standing" invalidate the circuit ruling as well?

That would leave the district court ruling, which wouldn't even apply to all of California (actually, who would it apply to? Some have said just the parties in the case).

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