Predict how SCOTUS rules on gay marriage

[Antonio the Sixth]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

[Antonio the Sixth]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

As I said before, I don't think options 2 or 4 are going to happen because those options would require a profound rearrangement of Federal/State power in favor of the States, a rearrangement that would affect a considerable body of established case law in fields totally unrelated to marriage.  I don't see the Supreme Court ruling that the Federal government has no choice but to use the definition of marriage that each State chooses to use for itself.  If DOMA goes down it will be because the Court finds that neither the Federal government nor the State governments can choose to recognize only opposite-sex marriages.

I see... that's annoying for sure.

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

Why would it? The Equal Protection Clause seems to argue otherwise. The states can't give legal rights to some but not others.

There is certainly a case to be made that banning gay marriage is a form of legal discrimination, but I also think there are still valid arguments against it. It isn't a clear-cut case like for racial discrimination and so forth. Due to the debatable nature of this claim, I would think the Court should defer to the Congress rather than mandate its own vision of the argument, whatever it be.

[Antonio the Sixth]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

I just think that for the sake of consistence, it would be better to have a precise rule of who does what. Obviously this is not a constitutional argument, but at least I believe it would be good policy.

[Antonio the Sixth]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

I just think that for the sake of consistence, it would be better to have a precise rule of who does what. Obviously this is not a constitutional argument, but at least I believe it would be good policy.

While in some respect it would be more convenient, it also would not be possible in a federal form of governance. It would require either a unitary or confederal form of government in which there was no dual sovereignty, but instead clearly defined spheres of non-overlapping sovereignty.  I'm not a fan of unitary governments, at least not for countries as diverse as the United States or Italy.  Confederal governments are more theoretical than actual unless the top level government is so weak as to have practically no powers at all.

Dual sovereignty can mean that States and the Federal Government both are sovereign in different respects, but not necessarily that they are both sovereign on the same single domain. Whether the States or the Federal Government define marriage, it would make sense, but I just think it is silly to have two layers of marriage, one federal and another statewide.

[Antonio the Sixth]

Part of me hopes that SCOTUS just legalizes it in California.  While prohibiting gay marriage is unconstitutional, there may be practical benefits for kicking the can down the road for most of the US.  It would further minimize the risk for backlash.  With support for marriage equality growing the way it is, it be better to just watch the forces opposed die a slow and painful death for a few more years.

Exactly. The last thing we need is the judiciary stepping up and forcing gay marriage down the throat of States that have not yet fully maturated to the idea. In a couple decades, 80% of States will have marriage equality and DOMA will have been repealed. By that time, the last few diehard opponents can be forced to follow suit, based on "evolving standards" or something of the kind.

[Antonio the Sixth]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

[Antonio the Sixth]

Things are never so clear-cut when it comes to Constitutional interpretation... Of course the Equal Protection Clause could be read as mandating that gay relationship should be given the same degree of official recognition (and financial benefits) as heterosexual relationships. On the other hand, one could make the case that the Equal Protection Clause only applies to individuals in a strict sense. That means that you can't discriminate against an individual because he's gay, but that you can discriminate between the relationships that two individuals choose to enter into, based on whether this relationship is same-sex or not. This is not, strictly speaking, a discrimination against gays, even though it becomes one in practice.

While I personally would lean towards the former interpretation (though with major caveats... you can't extend to relationships the exact same rights enjoyed by individuals, otherwise this could have many unintended effects), you all have to acknowledge that both these doctrines are rationally defensible and both still enjoy a significant degree of support. Arbitrarily choosing between one of those two lines based on one's personal conviction, and enforcing such line of reasoning to anyone including people who disagree, is the textbook definition of judicial activism. Of course, judicial activism might be in some cases necessary (when one doctrine is clearly morally superior to the other, and when a decision is necessary to end a particularly intolerable situation... see Brown v. Board). However, judicial activism is a dangerous and fundamentally undemocratic tendency, so let's limit it to those few cases where it is really indispensable. We have learned to know how horrible and vile right-wing judicial activism can be, in decisions like Citizens United. I don't want the left to act the same way, even if our causes are just and theirs are unjust.

Really, we should all stop using the constitution as a tool to advance a political agenda.

[Antonio the Sixth]

I take the Equal Protection Clause as applying strictly to individuals.  It does not protect groups, per se.  However, it certainly protects individuals from being treated in a subordinate fashion due to the group that they happen to belong to.  There is a strong case that granting lesser status to gay couples does in fact place gay individuals in a second-class citizen status.  After all, desiring a gay relationship is an integral part of being gay.  The question then becomes whether or not granting gay couples equal status with straight couples poses any tangible (secular) threat to society.  Certainly, prohibiting the shouting of "FIRE" in a crowded theatre is a reasonable limit on freedom of speech.  Do gays getting married pose such a threat?  You decide.

This line of reasoning has certainly something to it, but it also poses major problems. If I well understand, you are arguing that, although the ban on gay marriages does not in itself constitute a discrimination on individuals, this limitation put on their ability to marry people of their sex has a discriminatory effect and "place gay individuals in a second-class citizen status". I fundamentally agree with this. However, I don't think that these are sufficient grounds for the Equal Protection Clause to apply. The main problem is that the discriminatory nature of gay marriage bans applies to an area (marriage) which is subject to personal choice. It is, to put it as broadly as possible, a regulation on what are the conditions for two people to apply for a legally recognized status of association. So technically there is nothing in a same-sex marriage ban that discriminates against gays themselves. To state it in the dumbest possible way: gays have a right to marry - but only with people of a different sex than theirs. This policy is only discriminatory in that a certain category of individuals would have a preference for a form of relationship which would not be allowed. Thus, in some way, gays are self-discriminating and making themselves second class citizens, by their own choice of wanting to marry people of the same sex. Again, let me be clear: I do not subscribe to this opinion. But you have to admit that it is a legally and rationally valid line of argumentation. We liberals have to accept that many people embrace this vision, and have the same claim at judicial validity than us.

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I am deeply attached to the independence of the judiciary, and believe it is essential to have a check on elected representatives preventing them from overstepping their power. However, I believe the US goes way too far in judicial omnipotence. Here you have these 9 lifetime appointees, and if 5 of them happen to have the same personal interpretation of the Constitution, they are able to force it down the throat of everybody else without ever responding to anybody. We have had an occasion to see how awful this can be: look at Citizens United. I don't think this kind of judicial overreach is healthy for democracy. I think the judiciary should limit itself to upholding the most clear-cut, unquestionable or reasonably consensual interpretations of the Constitution, and defer to the legislature whenever a more ambiguous case arises. Otherwise, we are effectively surrendering all our decisional power to the personal beliefs of five old men in robes.

[Antonio the Sixth]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

Again, I do not believe in the argument I have laid out. However, can you deny that it is a legally sound rationale? And yes, I realize that it undermines much of our anti-discrimination precedents. There are many interpretations of the Constitution that can have morally abhorrent outcomes. The reason is simple: the US Constitution is not perfect. Far from it, in fact. Your argument seems to assume that the Constitution would never tolerate a ban on interracial marriage. But why so? Interracial marriage bans have been going on for over a century after the 14th Amendment was passed, and I'm pretty sure that none of the Congressment and State Legislators who ratified it interpreted it as making such bans unconstitutional. The reason interracial marriages are now constitutionally protected is simply that, as a society, we have come to a consensus that they should be constitutionally protected. This is the "evolving standards" doctrine, of which I'm not exactly fond but which strikes me as the lesser evil when you have a Constitution which is so difficult to amend. In a couple decades, the "evolving standards" doctrine will apply to same sex marriages as well, and the handful of States that will still not have it will be forced to join the rest of America. This is the best we can do as Progressives to advance our cause without turning the Supreme Court into a political body.

[Antonio the Sixth]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

Again, I do not believe in the argument I have laid out. However, can you deny that it is a legally sound rationale? And yes, I realize that it undermines much of our anti-discrimination precedents. There are many interpretations of the Constitution that can have morally abhorrent outcomes. The reason is simple: the US Constitution is not perfect. Far from it, in fact. Your argument seems to assume that the Constitution would never tolerate a ban on interracial marriage. But why so? Interracial marriage bans have been going on for over a century after the 14th Amendment was passed, and I'm pretty sure that none of the Congressment and State Legislators who ratified it interpreted it as making such bans unconstitutional. The reason interracial marriages are now constitutionally protected is simply that, as a society, we have come to a consensus that they should be constitutionally protected. This is the "evolving standards" doctrine, of which I'm not exactly fond but which strikes me as the lesser evil when you have a Constitution which is so difficult to amend. In a couple decades, the "evolving standards" doctrine will apply to same sex marriages as well, and the handful of States that will still not have it will be forced to join the rest of America. This is the best we can do as Progressives to advance our cause without turning the Supreme Court into a political body.

As long as you understand that the Constitution does not grant the right to interracial marriage any more than the right to same-sex marriage.  Also, as I stated in a previous post, there has to be some viable popular support to get anything done.  It would be impractical for the court impose a decision that is opposed by, say, 90% of the population.

Even assuming that you are right about this 90%-10% ratio (I'm not sure you can find 10% of Americans who think corporations are people)... don't you think there is something wrong with the Court taking a position that is only supported by 20, 30, 50 or even 70% of Americans? Who are these people to arbitrarily pick a constitutional interpretation over another when both have significant following, and whose judgment trumps those of all democratically elected bodies? I don't think this is the role of judges. The Supreme Court obviously has to uphold the Constitution, but only in ways that can't legitimately be argued against or that aren't the subject of controversy.

I think the fundamental problem is that Americans tend to confuse what is constitutional with what is good policy. They have this romanticized vision of the US Constitution as the perfect document which, if correctly interpreted, says everything a government needs to do to govern well. Of course this fantasy is much more widespread among Conservatives than among Liberals, but as the gay marriage discussion proves, many liberals seem to at least unconsciously adhere to it. Unfortunately, this is just plain wrong. The US Constitution is tragically imperfect, morally flawed, and unfit to rule a modern democracy in the 20th Century. Worshiping the Constitution as this magical document that can fix all the moral evils of the nation is terribly counterproductive, because by making it so sacred it highly discourages amending it. If Americans adopted a more skeptical view of their Constitution, maybe this would encourage them to amend it more often. So that maybe the decision to constitutionally protect interracial marriages would have come from the people, rather than from 9 old judges.

[Antonio the Sixth]

Naturally, the SCOTUS always has to interpret the Constitution to some extent. In most of the cases, this can be done without much difficulty. One can distinguish 3 categories:

- You cited the provisions that are unquestionably clear, such as the 35-year qualification to run for President. These are the most obvious ones, and a single judge would be enough to enforce them.

- I would add to that the numerous provisions where an interpretation has become sufficiently consensual among the public that espousing it has become plain common sense (all would agree that torture would fall into the "cruel and unusual punishment" category, for example). In those cases, common agreement has settled the issue for the court. If the consensus shifts at some point in time, the "evolving standards" doctrine can be brought up to justify a change in interpretation (though I would personally prefer a Constitutional Amendment).

- There are also cases where the most careful, reasoned and insightful reading of the text can allow to find the "correct" interpretation even when it was not initially self-evident. This is what the Court should really be about, IMO: they should deliberate and reason collectively so as to reach the true meaning of words; the meaning that, though hidden, is nonetheless inextricably and universally contained in the words written in the Constitution. This would however suppose that politics and personal beliefs do not play a role in the decisions of the justices. Ideally, they should rid themselves of their preconceptions and keep arguing based on plain legal reasoning until a unanimous verdict is reached. Isn't it what we require for juries, after all? That would guarantee that they all have reached the highest level of wisdom that they could reach collectively. Even if unanimity is too unrealistic a requirement, at least a 7-2 majority requirement would make sense if we want to make the SCOTUS a judiciary, rather than political, body.

Still, you have a few cases that do not fit in any of these 3 categories. These are the cases for which two (or more) equally valid rationales can be brought up in support of different interpretations of the text, both of which are supported by a significant share of the public. This is the realm of what we call "judicial activism". Judicial activism means that a judiciary body, by resolving the issue in one direction or another, effectively substitutes itself to political authorities and takes a decision which is political in nature. If a court chooses to follow rationale A over rationale B when both are valid from a legal standpoint, they are doing so because rationale A is closer to their personal political conviction. And by making this kind of consideration, they are substituting themselves to those legislative bodies who are supposed to decide based on political conviction because they are a direct expression of the popular will.

I don't mean to say that judicial activism is never acceptable. In certain cases, it can prove to be the lesser of evils. When it is used to put an end to a situation that runs afoul of basic democratic values and causes an immense harm to individuals, and if the political bodies have proven repeatedly unable or unwilling to act, then judicial activism, although never right at the theoretical level, can be good from a practical standpoint. The Warren Court engaged in judicial activism, and most of the time it did so with cautious consideration to what I just said. However, all of us should remain careful that judicial activism, from the exceptional weapon it is, does not turn into a common practice. Contrary to what we might think, conservatives are the firsts who engaged in systematic judicial activism to counter the will of the people as expressed by its representatives. It was under Roosevelt, where a bunch of reactionary justices was hellbent on undermining New Deal policies. Recently, conservatives have revived this strategy, as decisions like Citizens United proves. I hope that Liberals, if they ever have a chance to, will refrain from adopting this openly partisan attitude and will accept to defer to the legislature even when they could use judicial authority to advance their agenda.


Ideally, I think the Constitution should be completely rewritten in a language so clear that it might not give rise to several concurring (and rationally sound) interpretations. But I know that this is a pipe dream more than anything else. Still, there are many things in the US Consitution that could and should be clarified.

[Antonio the Sixth]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

I'm fairly certain that most African Americans would disagree with your assessment here.

I'm sorry, I am a staunch supporter of same sex marriage, but I don't consider it to be an issue nearly as important and righteous as the Civil Rights movement - not even close. Call me a DINO.

[Antonio the Sixth]

I'm really hoping for DOMA to be struck down. That law could be a huge thorn in the side of gay couples even in States where marriage equality is recognized, and probably won't be repealed before a decade or so (House GOPers are a stubborn bunch). Striking it down would be helpful, on top of making sense constitutionally in a "States Rights" perspective.

The SCOTUS obviously won't legalize it everywhere, attacking Civil Unions makes no sense juridically and would be counterproductive, and only striking down Prop 8 would be utterly useless and could even cause a backlash.

So, again, I'm really hoping for Option 2.

[Antonio the Sixth]

Prop 8 decision will be sent back down on standing so the only precedent set there is that if a state isn't willing to defend its own law then no one else can either.

That is a fricking ridiculous and dangerous precedent to set. And I say that as someone who want same-sex marriage legalized and isn't a fan of direct democracy.

Yeah, that would basically give State officials an effective veto power on any proposition they don't like - thus completely defeating the point of the proposition system.

[Antonio the Sixth]

Thursday June 27 it is I guess. Stonewall anniversary. Could be a nice bookend.

I don't think the Court appreciates symbolism of this kind.

[Antonio the Sixth]

So it seems that people are expecting that the part of DOMA that deals with federal recognition of same sex marriages to be struck down, while the part that deals with states recognizing out of state marriages to be retained. There's definitely a state's rights argument there, but "state's rights" is normally only used to help conservatives.

It's a little less sure whether Prop. 8 will be struck down, but most are assuming that it will. Obviously that is not "state's rights", even though the state as a whole wouldn't mind that they wouldn't have to wait until November 2014 to legalize it by initiative.

That's because only the provision dealing with federal recognition is up for debate in this case. The Supreme Court isn't allowed to rule on the other DOMA provision, on recognition by other states. It's only the federal part that's up for debate in this ruling.

The SC is allowed to do whatever they want to.

[Antonio the Sixth]

Alfred, trying to argue with JCL = fail.

[Antonio the Sixth]

This poll should be locked now.