Monday, December 14, 2015

My Jr. Senator's Ambitions v. Reality

Marco Rubio is seeking support for his unlikely presidential bid at our expense. It is really despicable to throw a minority group under the bus to advance one's personal political agenda. Rubio is not going to be the next president. VP? It could happen.

On Sunday, Marco Rubio asserted that same-sex marriage is not a settled issue since a future court ruling could overturn the ruling in Obergefell v. Hodges. Rubio went on to tell Chuck Todd on Meet the Press that “It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it.” Rubio went on to state “I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.”

Marco is clever but he is still full of shit. After Citizens United (when the Court answered a question that it was not asked) I have come to the conclusion that the justices can do whatever the hell they want to do. Having said that, the doctrine of res judicata precludes re-hearing a case in which final judgment has been rendered.

I traded some email on this subject with Lyle Denniston at SCOTUS Blog. He agrees that a new case would have to make its way through the federal courts. Mr. Denniston notes that the process would be rather quick. He also concludes that the most conservative justices have always been sticklers for Article III standing. The bakers, the florist and the photo makers do not have standing. The Court already declined to hear the photographer's case (Elane Photography v. Willock). Neither would any of the whiners that R.O. Lopez has collected.

It would take about three years for the Supreme Court to deliberate a new case. Someone would have the daunting task of demonstrating that they were injured by same-sex marriage and that the remedy is to allow the states to ban marriage marriage equality if they choose to do so.

Time is not on their side. The longer that marriage is in effect, the more conclusive it becomes that there are no injuries as a result. I cannot conceive of any circumstance that would allow someone to re-litigate Obergefell.

No matter who an (unlikely) President Rubio appoints to the Supreme Court, marriage will remain unchanged. I have always thought that Rubio's motor was too big for his boat. His ambitions are considerably greater than intellect and skills. Rubio seems determined to prove me correct.

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