Predict how SCOTUS rules on gay marriage

[True Federalist (진정한 연방 주의자)]

Options 2 and 4 are impossible.  I just do not see any valid way DOMA could be overturned without finding that same-sex marriage is a right. The pseudo-federalist argument that the Federal government must be bound by each State's definition of marriage contradicts tons of precedent on a wide range of issues well beyond marriage or even civil rights. If DOMA is struck down, then all bans against same-sex marriage will be stuck down nationwide.

Beyond the options in the poll, there is one more to consider (well two more if you think it is possible to strike DOMA while not having nationwide same-sex marriage).  Beyond just California, I can see the court issuing a ruling in the Prop 8 case that turns all civil unions that are marriages in everything but name into marriages and strikes down the concept of separate-but-equal in that field of law without requiring that states allow same-sex marriage. Indeed in the Prop 8 case, right now I think that is the most likely ruling.  I'm uncertain whether the court upholds or strikes DOMA.  I'm going to guess it upholds it 5-4, but it being overturned with a 5-4 or a 6-3 ruling would not surprise me.  If Kennedy votes to strike, I think that Roberts will do his darnedest to find a justification to go along with the majority to avoid having same-sex marriage bans struck down narrowly.

[True Federalist (진정한 연방 주의자)]

Options 2 and 4 are impossible.  I just do not see any valid way DOMA could be overturned without finding that same-sex marriage is a right. The pseudo-federalist argument that the Federal government must be bound by each State's definition of marriage contradicts tons of precedent on a wide range of issues well beyond marriage or even civil rights. If DOMA is struck down, then all bans against same-sex marriage will be stuck down nationwide.

The key distinction here is that the federal government currently doesn't marry anyone. They leave it up to the states to grant marriage licenses. That puts the federal government in a very awkward situation equal protection-wise when they start granting federal benefits to some legally married couples in Massachusetts but not others. The court doesn't necessarily have to find a fundamental right to marriage in order to strike down DOMA on equal protection grounds.

I'll disagree with that on several grounds. First of all, the federal government does marry people. Besides the marriage laws of the territories, it also sets rules for overseas marriages of US military and diplomatic personnel.  Second, the legislative history of DOMA and similar state laws is analogous that of the anti-polygamy laws enacted in the latter part of the 19th century. A hitherto unexpected challenge to the conventional definition of marriage causes laws to be enacted to specify those portions of the status quo which were considered so obvious as to not need being specified in the law. Third, quite apart from marriage there are quite a number of areas of the law where dual sovereignty exists and the Federal government chose to defer to the judgement of the states and then later chose to establish its own rules in part or in total. Last, but not least, DOMA only presumes to establish a standard for civil marriage is so far as that marriage interacts with the Federal government.

So, I'll reaffirm what I said before. If the court strikes DOMA, it will be on equal protection grounds that cause all laws prohibiting same-sex marriage, both State and Federal, to be struck down with DOMA.

Option 2; They'll strike down all marriage laws as a violation of freedom of religion under the First Amendment.

Which marriage laws?

I presume that when he said all he meant all.  Maybe with a sort of a reverse of what I think will happen with the Prop 8 case with all civil marriages being transformed into civil unions and the government not using the word "marriage" to describe a government recognized relationship.  I don't see the court being quite so silly.  At most when it strikes down Prop 8, it will tell California it needs to use the same term for both same-sex civil unions and opposite-sex marriages, but leave it up to the State to determine whether it will use civil unions or marriages.

[True Federalist (진정한 연방 주의자)]

They heard the arguments for both on the same day and their rulings will interact to some extent, so I think they will announce the decision for both on the same day. No matter how they rule, I expect them to announce the ruling on the Prop 8 case first.

Since I expect the ruling on Prop 8 will be to strike down the distinction between civil unions and civil marriages, that will have an impact no matter how they rule on DOMA. Less likely rulings from the Prop 8 case would be a narrow California-only ruling or to uphold Prop 8. I don't see them using the Prop 8 case to strike down bans against same-sex marriage nationwide. They'll stick to interpreting the narrower circuit court ruling rather than the broader district court ruling because if they do decide to strike the bans nationwide, the DOMA case gives a less cluttered trial history to do it with, plus it will be more dramatic to do it that way and Roberts does like to be dramatic at times.  I think he purposely wrote his decision in the Obamacare case to trip up reporters rushing to be first with the news.

Not that I think same-sex marriage bans will be struck down.  Indeed, I think DOMA will be upheld in full, but I could be wrong.  I am certain that if DOMA goes down, it will go down in full with the court finding that there is a constitutional right to same-sex civil marriage.  It won't be a ruling that leaves the issue up to the States to decide with the Federal government having no choice but to follow the definitions the States use.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

The Federal Constitution still generally views rights in the classical sense of negative rights that prevent the state from doing things to people.  To the extent that civil marriage is a right, it is one of the positive rights asserting that the government must do certain things for people. While some State Constitutions embrace the concept of positive rights, the Federal one does not.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

Much as it pains me, this Court has given me very little reason to be optimistic:

Option 1 by a 5-4 vote.

While I don't think the court will strike down DOMA, I would be quite surprised if it doesn't strike down Prop 8 in language that would make not only California, but all States that now have civil unions that are civil marriages in all but name be States where gay civil marriage exists.

[True Federalist (진정한 연방 주의자)]

If they narrow the ruling to CA by arguing once you give a right you cannot take it away, then it could imply bans on SSM in other states are constitutional. But more likely it will still leave that central question hanging and they will eventually have to deal with it again. So I think they will make a ruling either upholding Prop 8 or ruling all such bans are unconstitutional. I think that is why they took it up in the first place. Why take it on if they were just going to fudge it up.

While not of primary interest to most in this case, there is the standing issue which I think is of significant interest to the court, especially since the court directed the plaintiff to focus on that first.

[True Federalist (진정한 연방 주의자)]

Having heard the questioning today, I now think in the Prop 8 case, they'll rule the plaintiffs lack standing or have such a muddled split decision that the effect is the same, leaving the previous ruling to stand without committing the Court to rule on the merits of the case, thus affecting only California.  I also think it slightly more likely than before that they will decline to overturn DOMA, but it is still possible they will and the questioning tomorrow can still significantly affect my opinion of their probable opinion.

[True Federalist (진정한 연방 주의자)]

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.

As I've said before, I see no way the court strikes down DOMA without finding that same-sex marriage is a protected right under the Constitution.  Striking it down on the grounds that only States can define marriage opens up way, way too many questions concerning the boundaries of Federal/State power in a wide variety of areas.  It would effectively invalidate McCulloch v. Maryland.

[True Federalist (진정한 연방 주의자)]

As I've said before, I see no way the court strikes down DOMA without finding that same-sex marriage is a protected right under the Constitution.  Striking it down on the grounds that only States can define marriage opens up way, way too many questions concerning the boundaries of Federal/State power in a wide variety of areas.  It would effectively invalidate McCulloch v. Maryland.

I don't think that's true.

It's not.

It looks like Kennedy will try to limit the damage to Federalism by arguing that giving civil recognition to marriage is an exclusive ability of the States,  Still, I hope at least some of the liberal justicies stick to their guns and insist the case is an equal protection one and avoid Kennedy's sham Federalism in support of moderate heroism.

It would be ironic if Kennedy's approach comes back to bite the liberal wing in the ass on another issue.  After all, prior to 1973, deciding when a human life began (or ended) was an exclusive ability of the States, therefore it should have remained that way and hence using this same moderate heroism approach that some find convenient to accept in the DOMA case, a law that limited abortion that was explicitly based on a State definition of when human life began would be legal.  (One of the findings in Roe was that anti-abortion laws up to that time had been passed based on a concern for the health of the mother that could have been imperiled by an abortion under the crude state of the art of medicine at the time the laws were adopted.)  Indeed, the ability of the States to decide when someone has died remains with them, altho all 50 States have adopted the Uniform Determination of Death Act, which sets it at brain death, altho previous to 1968, the usual standard was the cessation of breathing and heart rhythm.

[True Federalist (진정한 연방 주의자)]

Prop 8 struck down on standing grounds and DOMA out on a coalition vote with Breyer, Sotomayor, Kagan and Ginsburg making the Equal Protection argument and Kennedy and Roberts making the 10th Amendment argument. Alito, Scalia and Thomas dissent.

My worry in that case is that three out of Breyer, Sotomayor, Kagan and Ginsburg sign on to Kennedy's moderate hero leave it to the states to the approach to make it an opinion that can be cited as precedent in other federalism cases.  Such a decision would swing the balance of power between the state and federal governments way too far to the states for my comfort.  Which is why I hope that either DOMA is upheld, or it is struck down on equal protection grounds.  Either outcome would cause far less long-term damage than to strike it down on states' rights concerns.

Next best would be a divided opinion that strikes down DOMA but doesn't agree why.

Bad, but not as bad as a ruling that the Federal government cannot use its own definition of marriage would be a narrow ruling that if the Federal government chooses to use State-recognized marriages as its basis for determining what will be a Federally-recognized marriage, then it can't pick and choose among the marriages.  That still would cause problems by reopening a broad swath of cases involving the full faith and credit clause if the same logic was applied there.

Still, judging by the oral arguments, it looks like my best hope is that the progressive justices stick to their guns and do not sign on to Kennedy's moderate hero reasoning  and insist upon striking down DOMA on equal protection grounds exclusively.

[True Federalist (진정한 연방 주의자)]

Fortunately, JCL, you're a member of an increasingly small minority.

I'm fairly certain that heterosexuals are likely to remain the majority for some time to come.  Tho I am reminded of some dystopian SF novels of the 60s and 70s that offered up a future in which governments promoted homosexuality as a method of birth control.

[True Federalist (진정한 연방 주의자)]

Fortunately, JCL, you're a member of an increasingly small minority.

I'm fairly certain that heterosexuals are likely to remain the majority for some time to come.  Tho I am reminded of some dystopian SF novels of the 60s and 70s that offered up a future in which governments promoted homosexuality as a method of birth control.

He wasn't talking about heterosexuals, but people who oppose gay marriage.

And it's very likely that the relevant part of DOMA will be struck down.

Why do people seem to not get humor on the internet unless accompanied by smileys? :sigh:

As for DOMA, what matters to me is not so much that it is stuck down, but how.  There are some ways that it could be done which would be horribly disruptive outside the sphere of gay rights.  The two least disruptive ways would be to either uphold DOMA or to strike it down on equal protect grounds.  If the court goes for a Federalism angle, it could get awfully messy for laws unrelated to gay rights if not done right.  I just do not trust Kennedy to get Federalism right, so I'm thinking my best hope is a court that agrees DOMA must be struck without agreeing as to why it must be struck so that this case isn't used to set bad precedents for future cases involving the balance of power between the Federal and State governments.

[True Federalist (진정한 연방 주의자)]

Anything less than "gay marriage is now legal everywhere" is Plessy part 2. I think the justices realize this.

It is legal everywhere, it just isn't recognized by all State governments, nor by the Federal government, which I realize will strike most here as a distinction without a difference, but it is one.  The equivalent case to Loving v. Virginia has already happened, it was Lawrence v. Texas.  No gay couple in the United States is subject to fines and/or jail time for being married as the Lovings were.

Harry, the outcome you advocate is to my mind one possible and desirable outcome. Given the potential to do considerable harm to a wide variety of laws, I strongly hope the court shies away from a Federalism argument.  Even done carefully, such a moderate hero approach has the potential to do mischief to a wide range of law.

[True Federalist (진정한 연방 주의자)]

When does the Supreme Court's Term end?  I assume that's the day we'll find out about all of this. I've seen conflicting information and I'd like to take off work on that day.

http://www.supremecourt.gov/oral_arguments/2012TermCourtCalendar.pdf

Monday the 24th of June is the last scheduled day for the Court to meet.  However, the decision for the Obamacare case was announced on the Thursday after the last scheduled day last year and if they do something similar they might wait until Thursday the 27th.  All meeting dates in June are on Monday or Thursday, and that's the only thing I would count on, that they will announce on a Monday or Thursday in June.

[True Federalist (진정한 연방 주의자)]

If the SCOTUS actually cared about the Constitution they would look up the 14th amendment and how it applies to ALL US STATES just like how when the SCOTUS ruled bans on interracial marriage unconstitutional in 1967 in Loving v Virginia.

Except Scalia says the 14th amendment's equal protection clause is only about race, not sex.

Technically, he's right. That's what the Equal Rights Amendment would have done.

Scalia isn't the deciding vote here, Kennedy is.  However, as I have said earlier, neither the DOMA case (United States v. Windsor) nor the Prop 8 case (Hollingsworth v. Perry) is the homosexual rights case closest to Loving v. Virginia in scope, Lawrence v. Texas was.

Virginia's anti-miscegenation statue did not merely not grant recognition of interracial marriage, it criminalized living in one even if one had recognition of such a marriage in another state.

These cases are not about whether homosexuals can marry, but whether same-sex marriages are entitled to the same civil recognition and civil benefits that are granted to opposite-sex marriages.

[True Federalist (진정한 연방 주의자)]

I know the Court isn't supposed to be effected by the news of the day. But as they watch 3 states legalize marriage equality in the span of two weeks I could see them having 2 thoughts:

1. The states are doing fine with this on their own. We don't need to issue a far reaching ruling.

2. We can't have a checkerboard map on this issue. We have to go with the 50 state solution.

The low hanging fruit on the issue of SSM is being plucked, but for those states that enacted constitutional amendments to bar SSM, it may well take a Federal court case to reverse those amendments.  However, I think they'll wait until they have a case from a state that does not recognize SSM to tackle the 50 state issue. Oral arguments seem to indicate that Kennedy is going to go for a quasi-Federalist solution.

[True Federalist (진정한 연방 주의자)]

When does the Supreme Court's Term end?  I assume that's the day we'll find out about all of this. I've seen conflicting information and I'd like to take off work on that day.

http://www.supremecourt.gov/oral_arguments/2012TermCourtCalendar.pdf

Monday the 24th of June is the last scheduled day for the Court to meet.  However, the decision for the Obamacare case was announced on the Thursday after the last scheduled day last year and if they do something similar they might wait until Thursday the 27th.  All meeting dates in June are on Monday or Thursday, and that's the only thing I would count on, that they will announce on a Monday or Thursday in June.

[True Federalist (진정한 연방 주의자)]

I just had a sudden thought about how if the Supreme Court goes a moderate Hero route of leaving gay marriage largely up to the States to determine, it wouldn't necessarily be of any help to people in the situation facing afleitch and his American husband.

You must be logged in to read this quote.

Unless the Court finds an explicit right to same-sex marriage, the above clause would indicate that for the purpose of immigration the Federal government has the power to not treat same-sex couples as married, even if the State the US partner is resident in would so treat them.

[True Federalist (진정한 연방 주의자)]

So if it's up to the Feds wouldn't that just mean it's up to whoever happens to be President at that time?

No.  If Obama tried to have INS start treating same-sex marriages equally without a court ruling telling him to or Congress changing the law, then he'd be breaking the law.  While I imagine Obama would not defend a lawsuit calling for INS to do that, that's not the same thing as him telling INS to initiate such an action.  Still, a lot depends upon how the Court (i.e. Kennedy) writes its (his) opinion.  I suspect that in his desire to be a moderate hero, Kennedy will do one of two things.  He'll either write a narrow opinion that deals strictly with the tax issues that were brought before the court, or he'll write one vague enough that a same-sex marriage seeking to have the other partner gain a green card would need to file a suit.  There was a recent case, Torres-Barragan v. Holder, in the Central District of California, that had rejected having INS treat same-sex couples as married and cited the 1982 9th Circuit case Adams v. Howerton which found among other things that "Congress has virtually plenary power in immigration matters and is not bound by otherwise applicable equal protection requirements".  The Torres-Barragan v. Holder case was abandoned by the plaintiffs before the 9th Circuit got to rule on it, and none of the DOMA cases dealt with immigration law.

So even if a ruling broadly favorable to same-sex marriage is made in the DOMA case, the application of it to immigration law is likely going to have to be litigated further.

[True Federalist (진정한 연방 주의자)]

Even with an equal protection based ruling, I think immigration law would still require additional action by the courts or Congress because of precedent stating that equal protection does not have as much weigh in immigration law as it does in other areas of the law.  So that doesn't create any additional reason for Kennedy to rule on equal protection grounds.  Also Kennedy hasn't show any reluctance in the past to create confusion.

[True Federalist (진정한 연방 주의자)]

Does the Supreme Court have to rule on these 4 or can they put them off until the next secession?

It's not unheard of for the court to hold off on an important case, but usually its because the court is divided 4-4 with a vacancy to fill or something similar.  However, there are no vacancies, and its doubtful a rehearing would alter the opinion of any of the justices, so I'm doubtful that any will be held over.

[True Federalist (진정한 연방 주의자)]

The court has announced that Wednesday will be their last day, with the two marriage cases and Sekhar v. US as the three remaining cases to be decided.