Predict how SCOTUS rules on gay marriage

[TDAS04]

I guessed California only, but I don't know.

If SCOTUS upholds the US Constitution, it will legalize it nationwide.  The equal protection clause should preclude society from putting certain people "in their place" without good reason.  Laws denying gay couples the same rights to civil marriage as straight couples are not simply declarations of the inferiority of gay couples; they enshrine the notion that gays and lesbians are inferior individuals.

Technically, the idea that there be no civil marriages for anyone would be constitutional.  Marriages would just be left to the various religious institutions, and the term would lose all legal meaning.  As long as state-sponsored unions provide the same title and equal benefits for gay and straight couples, that would be acceptable.  At least government would not be discriminating.  The only problem is, I do not know how willing heterosexual couple be when it comes to giving up their state-recognized marriages.

[TDAS04]

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.

[TDAS04]

I'd like to get marriage equality by any legal means.  Unelected judges DO have a role in preventing direct democracy from infringing on minority rights.  If everything was determined by a majority vote, that could become mob rule, and any constitution would become irrelevant.  If not for a powerful judiciary, there would have been no decisions striking down segregation or bans on interracial marriage.

Having said that, there needs to be some viable, popular support for anything to get done.  When SCOTUS legalized interracial marriage nationwide in 1967, it was actually legal in a majority of the states.  There was not much that the South could have done (such as trying to pass an amendment to the Constitution overturning the decision).  In the case of gay marriage, there is a little bit more risk for backlash (though certainly not as much as a few years back).  If we can get it legal in a few more states, I would be more comfortable with a sweeping Supreme Court ruling.  For now, I would just like to continue to enjoy watching the obstacles to gay rights fall like dominoes, and to continue watching the homophobes make noise.  It's fun, because I know that they are losing, and that they will lose.

[TDAS04]

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.

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.

I don't believe that judges should be allowed to be dictators.  However, there needs to be three separate and distinct branches of Government to check one-another.  That prevents any branch from obtaining absolute power and oppressing the people.  If the Supreme Court makes that bad of a decision, there is the option of Congress increasing the number of justices.  The US was never intended to be a pure democracy.  It is not Athens.

[TDAS04]

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.

I don't agree with lifetime appointment for members of SCOTUS; a limit of 20 years would be better.  However, they should NEVER be up for election, reelection, or reconfirmation.  They should interpret the Constitution to the best of their abilities, and elections would interfere with that.

[TDAS04]

It would be interesting to know if Olsen and Bois use a similar argument made by Thurgood Marshall in fighting for school desegregation.  Marshall conducted a study showing that black children tended to view white dolls more favorably than black dolls.  He concluded that legal school segregation negatively impacted the self-esteem of black children.  As individuals, they felt bad due to their skin color.  Why not question the impact that discriminatory laws have on (potentially suicidal) LGBT youth today?

When society bans gay marriage, it asserts its belief in heterosexual supremacy.  With the Equal Protection Clause in the Constitution, judges must take a look at any law designed to put certain people "in their place."  Then, they should determine whether or not such a law serves any reasonable, secular purpose.  For example, does the law protect the public from danger?

[TDAS04]

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.

[TDAS04]

Californian Tony, if I understand what you're saying, you believe that the Constitution is so imperfect (which it is, of course) that there is no point for judges to interpret in ways that may be controversial.  I disagree, since I believe that the courts should have some discretion where the Constitution's language is vague.  It prohibits "cruel or unusual punishment."  What is that?  It was never specified.  I suppose you could just interpret that to mean only that which was "cruel or unusual" in 1787.  Capital punishment for 13-year-olds may have been acceptable back then, but I would hope that high-ranking judges would block that today if necessary.  Some other areas of the Constitution are quite clear, though.  Requiring that the President be at least 35 at the time of inauguration is set in stone until amended, and I agree that it would be silly for SCOTUS to decide that 32 is now legal due to evolving standards.  Nevertheless, what does "the right to a fair and speedy trial" mean?  Someone needs to interpret that, and it should be determined by someone a little wiser than you or me, and by someone wiser than 51% of the public.  "Equal Protection under the Law" is the same.  As I said earlier, the US is not Athens.  We do not exterminate the eccentric among us through direct democracy.

[TDAS04]

I was thinking. Not much would be really gained if only Prop. 8 was struck down, since it would be super cake to repeal it (via another Proposition) next year.

It would most likely pass, yes.  It would be costly in a large state such as yours, though.  Oregon and Colorado are the best targets in 2014.

[TDAS04]

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.

If Californians feel that strongly, they can vote out their governor and attorney general and replace them with people who will defend it.