America help overturn Same-Sex Marriage!

[dannyg43]

Time is now the Supreme Court Justice Thomas says court should reconsider rulings on same-sex marriage, contraception
Specifically, Thomas wrote that the court should reconsider “substantive due process precedents, including Griswold, Lawrence and Obergefell,” references to major rulings involving reproductive, LGBTQ+ and civic rights.
Griswold v. Connecticut was decided in 1965 and provided married couples the right to contraception without government interference. This ruling inferred the right to privacy and played a role in using the right to privacy in cases involving LGBTQ+, contraceptive and abortion rights.

We can't wait any longer time on are side help me "find Attorney", volunteer to overturn same-sex marriage for God & country

[Moksha]

Wish we could find out how much clandestine money the LDS Church will funnel into this repeal effort.

[honorentheos]

We can't wait any longer time on are side help me "find Attorney", volunteer to overturn same-sex marriage for God & country

You have a case you believe has standing? Do tell.

[dannyg43]

Before the Court’s official decision to overturn Roe v Wade was released, President Biden was already warning that same-sex “marriage” would be next. As he said in May, “It’s not just the brutality of taking away a woman's right to her body ... but it also, if you read the opinion ... basically says there's no such thing as the right to privacy. If that holds ... mark my words: They are going to go after the Supreme Court decision on same-sex marriage.” Was he right?

[honorentheos]

Before the Court’s official decision to overturn Roe v Wade was released, President Biden was already warning that same-sex “marriage” would be next. As he said in May, “It’s not just the brutality of taking away a woman's right to her body ... but it also, if you read the opinion ... basically says there's no such thing as the right to privacy. If that holds ... mark my words: They are going to go after the Supreme Court decision on same-sex marriage.” Was he right?

Don't know. The majority opinion didn't necessarily go as far as the Thomas opinion. Do the other conservative justices really intend to go so far as that? Magic Eightball says it's unclear.

[Res Ipsa]

Time is now the Supreme Court Justice Thomas says court should reconsider rulings on same-sex marriage, contraception
Specifically, Thomas wrote that the court should reconsider “substantive due process precedents, including Griswold, Lawrence and Obergefell,” references to major rulings involving reproductive, LGBTQ+ and civic rights.
Griswold v. Connecticut was decided in 1965 and provided married couples the right to contraception without government interference. This ruling inferred the right to privacy and played a role in using the right to privacy in cases involving LGBTQ+, contraceptive and abortion rights.

We can't wait any longer time on are side help me "find Attorney", volunteer to overturn same-sex marriage for God & country

There is a great deal of misunderstanding about what Thomas said in his concurring opinion. Thomas has an objection to the legal concept of "substantive due process," and I think it's a reasonable objection. The problem arises out of the wording of the 14th amendment and a historical accident. Section 1 of the 14th amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's a ton of stuff packed into two sentences. The first sentence defines two kinds of citizenship: state and federal. The second generally divided into three clauses: privileges and immunities, due process, and equal protection. When federal courts strike down state statutes as violating the U.S. Constitution, it's generally under this amendment.

The privileges and immunities clause should have been a big deal. The amendment itself explicitly acknowledged two types of citizenship: the people are citizens of both their individual state and of the United States. And the individual states cannot take away the "privileges and immunities" of U.S. Citizenship. It left the "privileges and immunities" of U.S. Citizenship to be defined. Most importantly, it contained no language limiting "privileges and immunities" to the Constitution itself -- it left open a role for Congress to determine the extent of "privileges and immunities" of U.S. Citizenship as long as it acted within its delegated powers.

But then comes the historical accident in the form of the Slaughter-House cases, which was the first U.S. Supreme Court case that examined the extent to which the 14th amendment placed substantive restrictions on the power of state legislatures. Despite its broad language, the majority interpreted the privileges and immunities clause so narrowly as to basically give it no meaning whatsoever. Since that time, the privilege and immunities clause has not been used as the basis for the application of U.S. Constitutional rights to the states. Had a different case been the first test case of the 14th amendment, the entire jurisprudence that developed involving the relationship between federal and states rights would likely have been very different. Thomas argues that the Slaughter House Cases was decided incorrectly and that the Court should reverse it and hold that the privileges and immunities clause should govern when and how state legislatures can be prohibited from affecting the rights of federal citizenship. I think it's a strong and well founded legal argument that is rejected primarily because of 150 years of precedent.

Instead of letting the privileges and immunities clause do the job it was intended to do, subsequent court decisions used the due process clause as a substitute. The Court divided "due process" into two categories: procedural due process and substantive due process. Procedural due process is pretty intuitive: the government should not be permitted to deprive people of life, liberty or property without some fair process. Substantive due process examines a tougher issue: can the government do whatever it wants as long as it provides a fair process? Or is there some kind of substantive limitation on what the government can do to its citizens? This is particular important when it comes to the states because the U.S. Constitution did not purport to limit the power of state legislatures before the 14th amendment. Substantive due process says "yes, the government at least has to have a good reason for taking away life, liberty or property of its citizens, regardless of how fair the procedure is." It then tries to figure out what those limits are and when they apply.

The problem with substantive due process is that it resulted in one of the worst periods of Constitutional jurisprudence in United States history: the Lochner area. During the Lochner area, the Court struck down attempts by Congress to regulate interstate commerce because they interfered with fundamental rights of freedom of contract. For about 40 years, the Court struck down over 150 state and federal statues based on substantive due process, including minimum wage laws, child labor laws, and pro-labor union laws. Note that neither the original Constitution nor the bill of rights names freedom of contract as a right. The Court invented it through the same type of historical analysis that the conservatives purport to use today. The result was arguably the most "activist" court in U.S. History.

During the same period, however, the same analysis began to be used to guarantee what we think of as individual civil rights. For example, in Pierce v. Society of Sisters, the Court struck down an Oregon statute that required all children to attend public schools as a violation of substantive due process. And in Meyer v. Nebraska, the Court struck down a statute that prohibited teaching school subjects in any language other than English. Although the Court retreated from freedom of contract substantive due process after about 40 years, it continued to to advance civil rights substantive due process over the years.

So, substantive due process is a kind of double-edged sword, depending on the Court's view of what constitutes a substantive right that the state is powerless to abrogate.

Thomas wants to ditch the whole concept of substantive due process and resolve the same questions through the privileges and immunities clause. But that doesn't necessarily mean he wouldn't find that, say, the freedom to use birth control isn't a privilege and immunity under the U.S. Constitution. Or that interracial marriage isn't a privilege and immunity that is off limits to the states. HIs argument is that substantive due process is a phony, made up doctrine that exists only because of the incorrectly decided Slaughter House cases. It would be more intellectually honest to reverse the Slaughter House cases and the substantive due process cases and use the privilege and immunities clause as intended.

I agree with Thomas on this issue, although for reasons that I doubt Thomas would accept. Rather than resort to the result oriented voodoo of textual interpretation and purported attempts to divine the intent of the framers, it would give Congress a primary role in defining the contours of U.S. Citizenship. It would also, I think, free up the Courts from the dead hand of the past and focus on "what does it mean to be a citizen of the U.S. in 2022, not in the 1700s.

But I also don't think the concept of substantive due process will ever go completely away. If we treat the notion of inalienable rights seriously, we can't limit them to what a bunch of white, property owning, men wrote down 200 years ago. If it was written down, it can be changed. Whatever those rights are, they can't be limited to the Constitution or the Bill of Rights.

What you're really advocating for here is the power of the government to restrict individual liberty without limit. That's something that should give any actual conservative pause.

[Res Ipsa]

Before the Court’s official decision to overturn Roe v Wade was released, President Biden was already warning that same-sex “marriage” would be next. As he said in May, “It’s not just the brutality of taking away a woman's right to her body ... but it also, if you read the opinion ... basically says there's no such thing as the right to privacy. If that holds ... mark my words: They are going to go after the Supreme Court decision on same-sex marriage.” Was he right?

Don't know. The majority opinion didn't necessarily go as far as the Thomas opinion. Do the other conservative justices really intend to go so far as that? Magic Eightball says it's unclear.

It's very hard to say. The problem is that that the majority opinion fastens on a distinction that they may not be able to defend. For example, the majority finds that the state has a legitimate interest in protecting "potential life." Can the conservatives say with a straight face that birth control does not affect "potential life." The problem with basing a result-oriented decision on a distinction is that the distinction doesn't hold up in future cases. It's not enough to find a distinction - one must be able to argue that the distinction should make a difference.

[dannyg43]

Tenth Circuit Rules Web Designer Must Create Site For Same-Sex Marriage
https://jonathanturley.org/2021/07/27/t ... /#comments
There is a new ruling out of the United States Court of Appeals for the Tenth Circuit that could be headed for a major showdown in the Supreme Court. The decision in 303 Creative LLC v. Elenis could force a hitherto evasive Court to rule directly on the conflict between anti-discrimination laws and the religious clauses. I have previously written that I view these controversies as best addressed as free speech rather than free exercise cases. The Tenth Circuit decision reaffirms a growing conflict among the circuits and offers an especially strong case for the Court to consider such a major reframing of such conflicts.

The Court disappointed many when it found an off-ramp in the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involved Charlie Craig and David Mullins who went to the Colorado cake shop of Jack Phillips to order a cake celebrating their earlier marriage in Massachusetts. Phillips declined on religious grounds. He is willing to sell pre-made cakes to anyone but not decorate a cake for a same-sex marriage.

Phillips was found in violation of the Colorado Anti-Discrimination Act prohibits businesses from discriminating, including based on sexual orientation. The law is fairly standard and provides: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”

The Colorado Civil Rights Division referred the case to the state’s Civil Rights Commission, which ruled against Phillips. Phillips ultimately won in 2018 but the Supreme Court effectively punted the central issues. Rather than rule on the right to decline such jobs, Justice Anthony Kennedy wrote for a seven-justice majority that the Commission showed hostility to religion in the comments of Commissioners:

“[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. …The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

It was like Brown v. Board of Education being remanded over for a proper class certification hearing.

The Court could then have addressed the question in another case but elected to Arlene’s Flowers v. Washington in light of its decision. It then had yet another opportunity this term. Arlene’s Flowers v. State of Washington and Arlene’s Flowers v. Ingersoll was remanded. Stutzman the owner added a religious hostility claim after Masterpiece cakeshp but on June 6, 2019, the Washington Supreme Court unanimously ruled against Stutzman. Then the Supreme court denied certiorari in July 2021.

Now Masterpiece Cakeshop is coming back. On June 15, 2021, a Colorado District Court ruled in Scardina v. Masterpiece Cakeshop that Phillips again violated the Colorado Anti-Discrimination Act. This as an openly manufactured test case.

The new case is also out of the 10th Circuit and involves the same law. The Court explained:

“303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up. As part of the expansion, Appellants also intend to publish a statement explaining Ms. Smith’s religious objections (the “Proposed Statement”):

‘These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.’

Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA.”

The Court notably found that the objection was based on the specific message sought through the site creation rather than the identity or sexual orientation of the customers. However it nevertheless held that she was in violation of Colorado’s anti-discrimination statute because she intended “to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages.” Interestingly, the court found that her objection was based solely on the message/speech of the event, and not upon the sexual orientation of the customers:

Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.

That creates a relatively “clean” avenue for the type of free speech approach that I and others have favored for years.

The Court relied on the law being neutral to uphold the conviction:

“We are satisfied that message-based refusals may be objectively defined and are not the type of subjective test that triggers the individualized exemption exception. We need not decide how CADA’s causation standard should apply to Appellants’ message-based refusal. See supra, III.B.1. We also reiterate that, on a more developed record, Appellants might show that Colorado enforces that standard in a way that discriminates against religion, violating the Free Exercise Clause. Yet, whatever issues may be presented in a future case, it is clear to us that CADA’s causation standard itself is qualitatively different from the broad, discretionary analyses presented in other individualized exemption cases.”

The ruling will also therefore give the justices a clean shot at Employment Division v. Smith (1990) in which the late Justice Antonin Scalia wrote that there was no violation of free exercise of religion because the Oregon law was neutral. Under that holding “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

In prior cases, there was ample evidence of a majority that would overturn Smith. There are now 5 or 6 justices who have indicated that they reject the premise and test in Smith.

Thus, we now have Masterpiece heading back toward the Court and a major ruling in the Tenth Circuit that is ready for such an appeal. The chances of a post-Masterpiece showdown now seems extremely high in the highest court.

Here is the case: 303Creative opinion

[honorentheos]

Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.

Too bad Mormons tried this with polygamy back in 1879 and got reminded that religious belief may be protected but the law applies to everyone regardless of what one may believe.