[VC has a good post on how no SSM can hurt children.]
Since they won (if on limited grounds doctrinally though the message sent went further), it is not unsurprising the Bush v. Gore tag team doesn't want the Prop 8 ruling to be reviewed by the USSC. But, their arguments are sound. It would be different if a winner in a DOMA case said something similar, one major reason being that the constitutionality of a federal statute is at stake. Also, there isn't the standing issue (though that might be a separate area of review). There is some overlap (e.g., Baker v. Nelson in both cases not binding).
I think not rushing it is important in general in this area without denying that the case for full equality is strong. Shortly before he retired, Justice Souter noted:
I say the above since I repeatedly have asked people about such things when original understanding is relied on and other than selective citation of some faction who agreed with them, it repeatedly is not really addressed. I had a tiresome debate with someone who kept on asked (and then some months later, asking again) "when did the death penalty become unconstitutional" as if something like that occurred at 9 A.M. some day or something. In real life, ideas, including those of a constitutional dimension, reach some sort of tipping point.
And, some care on not rushing things along is worthwhile. Hawaii did not (when the state supreme court appeared ready to find them protected, so it was far from merely a possibility) block by constitutional amendment all same sex marriages, even if the legislature or popular referendum determined they were acceptable. It gave the legislature the discretion, which was a reasonable thing to do in the 1990s when not a single state has SSM. California didn't do that in Prop 8 -- in fact, more than once, the state legislature (with some support from the governor) was ready to protect same sex marriage. As the brief notes, this suggests the lengths taken here, why it is a specialized case that the USSC should let lie.
DOMA was not the way to go. DOMA inhibits the "work through" by burdening those states who lead the way, who might experiment with more expansive marriage rights. The feds did not do this when states began to have easy divorces or altered the gender balance, which significantly changed "traditional marriage" in numbers much higher than this. Domestic partnerships and civil unions are more valid ways, though I'm on the side who would constantly push things along. But, I have been consistent. In 2003, I thought it very well might (the state supreme court rejected this) approach to take the Vermont approach in Massachusetts.
The speed of change is a concern all over the place -- see also, Ginsburg's belief Roe v. Wade went too fast and/or used the wrong approach. Careful change is my desired approach, change that can include certain people strongly stating the principles involved (principles that if taken to their logical conclusions would demand more) and push for more. To make things political, I think Obama as a whole is such a figure, if anything, a bit too conservative in some ways. More evidence why the choice in November is so easy, given the lousy competition.
Since they won (if on limited grounds doctrinally though the message sent went further), it is not unsurprising the Bush v. Gore tag team doesn't want the Prop 8 ruling to be reviewed by the USSC. But, their arguments are sound. It would be different if a winner in a DOMA case said something similar, one major reason being that the constitutionality of a federal statute is at stake. Also, there isn't the standing issue (though that might be a separate area of review). There is some overlap (e.g., Baker v. Nelson in both cases not binding).
I think not rushing it is important in general in this area without denying that the case for full equality is strong. Shortly before he retired, Justice Souter noted:
And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.The majority and dissent applied this general principle differently, but it underlines the value of some due care. Those who support original understanding repeatedly refuse to face up to the reality that their unrealistic (among other things) stance would seem to require application of constitutional principles in ways deemed quite strong today (e.g., interracial marriage or protection of the 1A beyond prior restraint) the same way a century ago. The only reason for not doing so would be clear error. This is an unrealistic and unfair approach to development of understanding of broad constitutional doctrine. Debate like this is not only tedious (we just don't have the material to get a full sense of their thought) as well as ulimately pretty misguided.
I say the above since I repeatedly have asked people about such things when original understanding is relied on and other than selective citation of some faction who agreed with them, it repeatedly is not really addressed. I had a tiresome debate with someone who kept on asked (and then some months later, asking again) "when did the death penalty become unconstitutional" as if something like that occurred at 9 A.M. some day or something. In real life, ideas, including those of a constitutional dimension, reach some sort of tipping point.
And, some care on not rushing things along is worthwhile. Hawaii did not (when the state supreme court appeared ready to find them protected, so it was far from merely a possibility) block by constitutional amendment all same sex marriages, even if the legislature or popular referendum determined they were acceptable. It gave the legislature the discretion, which was a reasonable thing to do in the 1990s when not a single state has SSM. California didn't do that in Prop 8 -- in fact, more than once, the state legislature (with some support from the governor) was ready to protect same sex marriage. As the brief notes, this suggests the lengths taken here, why it is a specialized case that the USSC should let lie.
DOMA was not the way to go. DOMA inhibits the "work through" by burdening those states who lead the way, who might experiment with more expansive marriage rights. The feds did not do this when states began to have easy divorces or altered the gender balance, which significantly changed "traditional marriage" in numbers much higher than this. Domestic partnerships and civil unions are more valid ways, though I'm on the side who would constantly push things along. But, I have been consistent. In 2003, I thought it very well might (the state supreme court rejected this) approach to take the Vermont approach in Massachusetts.
The speed of change is a concern all over the place -- see also, Ginsburg's belief Roe v. Wade went too fast and/or used the wrong approach. Careful change is my desired approach, change that can include certain people strongly stating the principles involved (principles that if taken to their logical conclusions would demand more) and push for more. To make things political, I think Obama as a whole is such a figure, if anything, a bit too conservative in some ways. More evidence why the choice in November is so easy, given the lousy competition.