Prop 8 was Upheld, and will likely be Reaffirmed-Upheld again next month by the 2013 Windsor Decision which at its end named only 11 states who had legal gay marriage as of its authorship. The 2013 Opinion iterated (56 time no less, in a 25 page Opinion) that the choice on this specific question of law (gay marriage) was and always had been up to the states.
Ah, but the part that you keep forgetting? The part of the ruling that put constitutional guarantees above state marriage laws:
Windsor v. US said:
Subject to certain constitutional guarantees, see
, e.g., Loving v.
Virginia,
388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,”
Sosna v.
Iowa,
419 U. S. 393.
The hierarchy established by the Windsor decision is thus as follows:
1) Constitutional guarantees
2) State marriage law
3) Federal marriage law
And in Perry v. Brown, the federal judiciary found that Prop 8 violated constitutional guarantees. And was thus invalid. Consequently, the Perry decision was in complete compliance with Windsor, which establish constitutional guarantees as being above state marriage laws. As it should be.
Worse for you, the Supreme Court preserved the Perry decision in Hollingsworth v. Perry upheld the federal court ruling overturning Prop 8. There is no appeal left. Thus, the Perry v. Brown decision stands. And it overturned Prop 8.
All of which you know. But really hope we don't.
California, last time I checked, is a state. And California, last time I checked, cannot revoke intiative law without another initiative. And the lower courts in the federal appeals system, last time I checked, cannot overrule SCOTUS from underneath. For more on that point you should visit judge Sutton's opinion from the 6th circuit decision.
The obvious problem with your claims being.....
the Supreme Court never ruled that state same sex marriage bans were constitutional. Making your entire argument moot. Worse for you, the Supreme Court did find that state marriage laws were subject to constitutional guarantees. And the Perry decision overturned Prop 8 on the basis of the violation of constitutional guarantees. With the Supreme Court itself preserving the Perry decision
Prop 8 is still overturned. Gay marriage is still legal in California. Remember, Sil......you don't actually know what you're talking about. You summarily ignoring Perry v. Brown and Hollingsworth v. Perry doesn't make either decision disappear.
1. Gays can never have kids. Only hetero couplings result in children. So what you're really wanting to do is make the Court put the stamp of approval and force all 50 states to put the stamp of approval on children born out of wedlock "as married". For instance, every child of a lesbian has a father. Every child of gay men has a mother. "Gay marriage" institutionalizes the deprivation to children of one of the vital genders as a parenting role model.
There are children being raised by same sex couples, as the court has already affirmed in the Windsor decision. And denying their parents same sex marriage hurts these children, per the Supreme Court itself:
Windsor v. U.S. said:
"And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives....
...DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. "
You can ignore Kennedy on the harm the denial of marriage of same sex couples causes their children. But Kennedy won't.
2. Which time? This time or the one you guys are fond of quoting about him? Because this time he was bemoaning how there aren't enough social studies in (with respect to children and their formative environment) for him to feel comfortable forcing this on unwilling states.
Actually, that's not what he said. He said that the social science wasn't a reliable indicator as the science was too new. So he wasn't going to use social science.
Justice Kennedy in Obergefell hearing said:
"Well, part of wait and see, I suppose, is to ascertain whether the social 18 science, the new studies are accurate. But that it seems to me, then, that we should not consult at all the social science on this, because it's too new. You think you say we don't need to wait for changes. So it seems to me that if we're not going to wait, then it's only fair for us to say, well, we're not going to consult social science."
Justice Kennedy
He said clearly that he wasn't going to consult social science. That in no way contradicts any of the harms he cited in the Windsor decision, as they were all
immediate legal harms. Not defined by social science, nor referencing social science in anyway.
Again, its highly unlikely that Kennedy is going to ignore himself and instead follow whatever it is you make up. Its much more likely that Kennedy is going to affirm his own arguments and his own findings in previous cases.
Which leaves you without a paddle or a boat to swing it in. As Kennedy has found no benefit to any child in denying same sex marriage. And has instead found immediate legal harm to children caused by denying same sex marriage.
