“Judicial Activism”

[Hindsight was 2020]

https://mobile.twitter.com/chasestrangio/status/1313112412393005057

[Horus]

Of course Thomas and Scalito hate it, but they're the only two who still care. I'm not even sure Barrett would overturn atp

[redjohn]

A bit scary, and not surprising at all. The theocrats are just waiting for the chance to again impose their extremist Christian beliefs on everyone. They don't merely believe that they themselves have to follow a religious code of conduct; they believe that everyone, including those who are not members of their religion, must abide by the same restrictions and archaic beliefs. It's a horrifying way to view the world and society.

When people are not following their extremist code, they legitimately believe it's a threat to themselves. It obviously has nothing to do with the Constitution and everything to do with religious extremism. They truly believe that they have the right to inflict religion-based discrimination on others, and that it's a personal loss of liberty when others are involved in practices not sanctioned by their religion.

[Del Tachi]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

[OSR stands with Israel]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

[Del Tachi]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

I don't think any conservatives on the Court take legal issue with state recognition of SSM; there is nothing in this opinion calling into question the existence of the 14th Amendment right to SSM. 

The problem the Court has is to determine the extent which private individuals, "closely held" corporations and non-profit institutions can refuse to participate in certain activities under the free exercise clause, and how those claims interact with RFRA.  That's an area where the Court has a lot of leeway, and Obergefell pre-empted a more natural progression of state law that would have likely resolved some of these issues absent the intervention of the Court.  I think that's all Alito/Thomas are saying here.

[OSR stands with Israel]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

I don't think any conservatives on the Court take legal issue with state recognition of SSM; there is nothing in this opinion calling into question the existence of the 14th Amendment right to SSM. 

The problem the Court has is to determine the extent which private individuals, "closely held" corporations and non-profit institutions can refuse to participate in certain activities under the free exercise clause, and how those claims interact with RFRA.  That's an area where the Court has a lot of leeway, and Obergefell pre-empted a more natural progression of state law that would have likely resolved some of these issues absent the intervention of the Court.  I think that's all Alito/Thomas are saying here.

Well the Federal Government gives marriage benefits too , just not the state and its due to that reason same sex marriages have to be recognized

[brucejoel99]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

[Del Tachi]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

I don't think any conservatives on the Court take legal issue with state recognition of SSM; there is nothing in this opinion calling into question the existence of the 14th Amendment right to SSM. 

The problem the Court has is to determine the extent which private individuals, "closely held" corporations and non-profit institutions can refuse to participate in certain activities under the free exercise clause, and how those claims interact with RFRA.  That's an area where the Court has a lot of leeway, and Obergefell pre-empted a more natural progression of state law that would have likely resolved some of these issues absent the intervention of the Court.  I think that's all Alito/Thomas are saying here.

Well the Federal Government gives marriage benefits too , just not the state and its due to that reason same sex marriages have to be recognized

I don't think that's what Alito and Thomas are arguing against in this opinion

[Ichabod]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

That's why I think probabilities about court-packing are not zero: Thomas and Alito are Republican-hack enough (and dumb enought, maybe) to try to overturn not just problematic issues as ACA or Roe, but these kind of harmless precedents

[Ferguson97]

Evil, homohobic scumbags.

[Dereich]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Thomas in particular has made one of the hallmarks of his judicial philosophy that he does not follow this line of argument. He's said a number of times that if he believes a case is bad law then the court should not allow it to stand on the reasoning that the bad case has led to many positive outcomes and voluminous successors that would be effected. Thus his insistence on relitigating Slaughterhouse and all of the successive 14th Amendment cases on substantive due process, even if he believes many of those rights would still flow from the privileges and immunities clause.

[Badger]

Of course Thomas and Scalito hate it, but they're the only two who still care. I'm not even sure Barrett would overturn atp

Oh, she would in a heartbeat

[○∙◄☻¥tπ[╪AV┼cVê└]

Roberts is too smart to overturn it.

[Alcibiades]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Not to mention it would be an electorally terrible play for the GOP, extremely unpopular among voters (who massively favour SSM, and that’s before you get to the dreadful optics of ripping up marriages), and basically preventing the GOP from using the issue of judicial appointments as a net vote-winner.

[freepcrusher]

let me pimp my own thread here: https://talkelections.org/FORUM/index.php?topic=395391.msg7589218#msg7589218

[Queen Mum Inks.LWC]

I think the analysis in Obergefell has issues, and it should be revisited so that the Court can come up with an actual standard. Lawrence is less problematic without a standard because you don't have nearly as many collateral effects as you do under Obergefell. But I don't think it'll be overturned. Roberts won't vote to do so, and I question if Gorsuch would. The practical harm in undoing any legal error in Obergefell will likely keep it from being overturned.

[Fuzzy Bear]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

The highlighted part is the issue.  

What if the highlighted part results in Churches being mandated to refrain from preaching those aspects of Scripture that refute the idea that homosexuality is sanctioned by God, Scripturally?  What if that highlighted part results in Religious Schools being mandated to hire openly gay teachers who reject Scriptural teachings on Marriage and Family?  What if the highlighted part was used to usher in legal doctrines of "Hate Speech" which would be used to shut down Churches and silence Pastors and ordinary Christians?

Most people here would be fine with that.  They care about THEIR rights but don't care about the religious rights of millions of Christians (and Jews and Muslims for that matter).  Alito's concern about Obergefell is seen as the GOAL of the left.  Carving wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections is seen as a necessity to protect Religious Liberty.  These exceptions can, indeed, be carved out without negating SSM, but the Religious Liberty of millions of God-Fearing Americans isn't the concern of today's Left.

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Now I will say, as a practical matter, that I agree with the above.  I do believe that my position and this one can both be accommodated in law.

[MarkD]

Judicial activism is not the overturning of judicial precedent. Judicial activism is when judges instill their own values into their "interpretations" of law.

The best explanation of what judicial activism is, and simultaneously, a condemnation of it, was in Chapter 3 of John Hart Ely's book "Democracy and Distrust," published in 1980.

"About forty years ago people 'discovered' that judges were human and therefore wefe likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasonings. From that earth-shattering insight it has seemed to some an easy inference that that is what judges ought to be doing. Two observations are in order, both obvious. The first is that such a 'realist' theory of adjudication is not a theory of adjudication at all, in that it does not tell us which values should be imposed. The second is that theory's 'inference' does not even remotely follow: that people have been tempted to steal does not mean stealing is what they should be doing. This is all plain as a pikestaff, which means something else has to be going on. People who tend to this extreme realist view must consciously or unconsciously be envisioning a Court staffed by justices who think as they do. That assumption takes care of both the problems I've mentioned. It tells us what values are to be imposed (the commentator's own) and also explains (at least to the satisfaction of the commentator) why such a Court would be desirable. But it's a heroic assumption, and the argument that seems to score most heavily against such a 'realist' outlook is one that is genuinely realistic -- that there is absolutely no assurance that the Supreme Court's life-tenured members (or the other federal judges) will be persons who share your values." ["Democracy and Distrust," page 44.]

Later in Chapter 3, Ely presented arguments about how lawyers and judges may try to cloak their own values behind methods of legal reasoning that sound as if they are neutral and objective, such as "Natural Law," "Neutral Principles," "Reason," "Tradition," "Contemporary Consensus," and "Predicting Progress," but all these methods are still just smoke screens for judges to impose their own values.

But Ely argues that for judges to impose their own values is completely undemocratic, an abuse of judicial discretion, and a violation of the principle of the separation of powers. He quotes Robert Dahl as saying "After nearly twenty-five centuries, almost the only people who seem to be convinced of the advantages of being ruled by philosopher-kings are ... a few philosophers."

[Hindsight was 2020]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

The highlighted part is the issue.  

What if the highlighted part results in Churches being mandated to refrain from preaching those aspects of Scripture that refute the idea that homosexuality is sanctioned by God, Scripturally?  What if that highlighted part results in Religious Schools being mandated to hire openly gay teachers who reject Scriptural teachings on Marriage and Family?  What if the highlighted part was used to usher in legal doctrines of "Hate Speech" which would be used to shut down Churches and silence Pastors and ordinary Christians?

Most people here would be fine with that.  They care about THEIR rights but don't care about the religious rights of millions of Christians (and Jews and Muslims for that matter).  Alito's concern about Obergefell is seen as the GOAL of the left.  Carving wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections is seen as a necessity to protect Religious Liberty.  These exceptions can, indeed, be carved out without negating SSM, but the Religious Liberty of millions of God-Fearing Americans isn't the concern of today's Left.

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Now I will say, as a practical matter, that I agree with the above.  I do believe that my position and this one can both be accommodated in law.

Then a bunch of reactionary bigots who are playing the nitpick game with the Old Testament will have to go find a new marginalized group to pick on.

[Agafin]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Isn't that what happended in California in 2008?

[brucejoel99]

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Isn't that what happended in California in 2008?

I don't think Proposition 8 revoked marriage licenses which had been issued prior to its passage, it only stopped the issuing of marriage licenses to same-sex couples after its passage.

[Tokugawa Sexgod Ieyasu]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

The highlighted part is the issue. 

What if the highlighted part results in Churches being mandated to refrain from preaching those aspects of Scripture that refute the idea that homosexuality is sanctioned by God, Scripturally?  What if that highlighted part results in Religious Schools being mandated to hire openly gay teachers who reject Scriptural teachings on Marriage and Family?  What if the highlighted part was used to usher in legal doctrines of "Hate Speech" which would be used to shut down Churches and silence Pastors and ordinary Christians?

Most people here would be fine with that.  They care about THEIR rights but don't care about the religious rights of millions of Christians (and Jews and Muslims for that matter).  Alito's concern about Obergefell is seen as the GOAL of the left.  Carving wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections is seen as a necessity to protect Religious Liberty.  These exceptions can, indeed, be carved out without negating SSM, but the Religious Liberty of millions of God-Fearing Americans isn't the concern of today's Left.

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Now I will say, as a practical matter, that I agree with the above.  I do believe that my position and this one can both be accommodated in law.

Then a bunch of reactionary bigots who are playing the nitpick game with the Old Testament will have to go find a new marginalized group to pick on.

Sorry, but this is an absolutely ridiculous answer to Fuzzy's first and third questions. Restricting what a religion is allowed to teach about homosexuality, or any other subject for that matter, is an obvious First Amendment violation, and if you don't see a problem with shuttering churches because their pastors are homophobic, then perhaps individual and minority rights are not really something that you are concerned about.

Of course, I don't think that's a serious concern anyway, because I disagree that that's implicit in the Obergefell ruling.

[Hindsight was 2020]

Under the language of Obergefell, the Court suggested that traditional Christian values are legally tantamount to discrimination against homosexuals.  That requires the Court to carve-out wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections.  That is, I believe, what Thomas means by "a problem that only [the Court] can fix."

Not really , the problem is the government gives out marriage benefits so denying gay couples that does violate the separation of church and state and the equal protection clause .

The highlighted part is the issue. 

What if the highlighted part results in Churches being mandated to refrain from preaching those aspects of Scripture that refute the idea that homosexuality is sanctioned by God, Scripturally?  What if that highlighted part results in Religious Schools being mandated to hire openly gay teachers who reject Scriptural teachings on Marriage and Family?  What if the highlighted part was used to usher in legal doctrines of "Hate Speech" which would be used to shut down Churches and silence Pastors and ordinary Christians?

Most people here would be fine with that.  They care about THEIR rights but don't care about the religious rights of millions of Christians (and Jews and Muslims for that matter).  Alito's concern about Obergefell is seen as the GOAL of the left.  Carving wide religious liberty exceptions for individuals, businesses and NGOs going forward in order to just maintain basic free exercise protections is seen as a necessity to protect Religious Liberty.  These exceptions can, indeed, be carved out without negating SSM, but the Religious Liberty of millions of God-Fearing Americans isn't the concern of today's Left.

Let's be real: overturning Obergefell would quite possibly be the dumbest thing that the modern Court could seek to do. Telling a bunch of people that their marriage licenses are invalid & reverting things back a decade would be utter hell. Anybody with any sense of procedure should recognize that this bell can't be unrung.

Now I will say, as a practical matter, that I agree with the above.  I do believe that my position and this one can both be accommodated in law.

Then a bunch of reactionary bigots who are playing the nitpick game with the Old Testament will have to go find a new marginalized group to pick on.

Sorry, but this is an absolutely ridiculous answer to Fuzzy's first and third questions. Restricting what a religion is allowed to teach about homosexuality, or any other subject for that matter, is an obvious First Amendment violation, and if you don't see a problem with shuttering churches because their pastors are homophobic, then perhaps individual and minority rights are not really something that you are concerned about.

Of course, I don't think that's a serious concern anyway, because I disagree that that's implicit in the Obergefell ruling.

Agreed I find Fuzzy’s hypothetical to be ridiculous which is why I was mocking it with my response. Though at the same time it is annoying seeing people like FB an the hardline culture warriors try to disguise their homophobic beliefs as Christian when the parts of the Bible that are the basis for said anti-homosexual beliefs are the same ones that are just as hard on divorce, eating shell fish, and dying your clothes yet we don’t really hear much call for action on these things.

[Tokugawa Sexgod Ieyasu]

Though at the same time it is annoying seeing people like FB an the hardline culture warriors try to disguise their homophobic beliefs as Christian when the parts of the Bible that are the basis for said anti-homosexual beliefs are the same ones that are just as hard on divorce, eating shell fish, and dying your clothes yet we don’t really hear much call for action on these things.

This is a common misconception both about the Bible and about Christian moral theology. It's a misconception about the Bible in that there are (verses that can be read as) condemnations of homosexuality in the New Testament as well, actually at a higher concentration than in the Old Testament (about four verses as opposed to about eight) given the Old Testament's vastly greater length. It's a misconception about Christian moral theology in that moral theologians, assessing Old Testament law, traditionally make a distinction between "moral law" and "ritual law", with the sexual purity codes falling on one side of that division and the codes about food etc. falling on the other.

A better observation to make about the fixation that many Christians have on The Gays is just to hammer home the divorce double standard over and over, since that's in the same category as the adjurations against homosexuality and is directly reaffirmed by Jesus Himself in multiple Synoptic Gospels. Even that doesn't work on conservative Catholics.