Predict how SCOTUS rules on gay marriage

[SteveRogers]

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. 

Of course yes, once you've made that argument the next logical step is to say that the states can't provide marriage rights to one set of couples but deny giving them to another. Whether this court will be ready to take that step remains to be seen.

[SteveRogers]

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.

If you believe that a right to marriage equality exists through the constitution's guarantee of equal protection under the law, then no, going through the courts doesn't cheapen the "moral quality" of the win because it's not a  question that has any place being on the ballot to begin with.

[SteveRogers]

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.

[SteveRogers]

Holding that the Constitution gives exclusive power to the States to regulate marriage is at once silly and horrible public policy. Gays moving to those certain states will have to endue their marriages being effectively terminated from now until rocks cool. The whole idea of gay marriages being recognized in some states, and not others, simply is not sustainable over the long term, and raises disturbing issues as to whether the right to travel is effectively being eviscerated, with the burden on gays in traveling to some states just shocking to the conscience.

Plus DOMA is about cutting off federal benefits. Does Congress not have the right to decide who gets federal benefits, and who does not?  Of course it does, unless there are equal protection issues. So we get back to equal protection. There is no escape from that.

Anyway, the point is that if States have exclusive jurisdiction, then Congress in the future will have no power to pass legislation that gay marriages must be recognized everywhere. Well, maybe they could withhold funds from states that don't, but if states have exclusive jurisdiction, then that raises undue burden or coercion issues on the States, which is an issue as to which Kennedy is particularly sensitive, as he opined in the Obamacare case.

SCOTUS would be wise to just butt out, and let this matter be resolved at the ballot box. We know now what the result will be if that is the case. There is no turning back.

Obviously holding that the states have exclusive authority over marriage would be silly. The thing is, that's not at all necessary to strike down DOMA. A perfectly reasonable ruling could just hold that so long as the federal government uses state-issued marriage licenses as its criteria for determining which couples get federal benefits, they should have to treat identical marriage licenses identically. The Federal government doesn't have to give anybody marriage benefits, but given that they have decided to grant such benefits, and given that they rely on the states to actually marry people, they shouldn't be able to give marriage benefits to one couple that's married in Massachusetts while denying them to another Massachusetts couple whose marriage is just as equally valid under state law unless they have a very good reason for doing so. DOMA can, should, and probably will be struck down without destroying the American model of federalism as we know it as some are suggesting.

[SteveRogers]

It is as I thought. Legal again in California, and DOMA struck down.

And when gay marriage does come before the Supreme Court, this new standard/precedent makes it very likely to legalize it nationwide.

This. The equal protection language in the DOMA ruling is stronger than what a lot of people expected. Should be a very helpful precedent the next time gay marriage winds its way up to the Supreme Court.