Predict how SCOTUS rules on gay marriage

[politicallefty]

Like most, I also think DOMA is going to fall. I'm not sure that there will be a majority on any particular line of reasoning, though there is a limited possibility a majority strikes it down on equal protection grounds. Justice Kennedy could limit it to DOMA and let a lower court ruling on Prop 8 stand. That could delay by a couple years any SCOTUS decision on gay marriage as the issue would have to start from the beginning at the district court level (with a state or states without California's unique situation).

After listening to the oral arguments in both cases, I think it's extremely unlikely the Court rules anything other than options 4 or 5 (the former being much more likely than the latter). Therefore, my vote goes to option 4. I believe Prop 8 will soon be completely unenforceable, whether it happens on the merits or the standing issue. And, as I said above, Section 3 of DOMA looks to be dead as well.

One thing I did notice was this brief insight in Justice Kennedy's thinking:

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It's not a line of reasoning that has really got much attention at all, but it would raise the standard of review to intermediate scrutiny. There's no way a gay marriage ban would survive that standard.

[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.

[Swedish Rainbow Capitalist Cheese]

While it helps LGBT couples in CA and the 10 states that have SSM, it will do nothing for the ones in the rest of the country.

The war usually isn't won in a day. The court striking down DOMA is the important part. With public oppinion evolving on the issue as fast as it is, we might actually see a majority of the country legalising it by itself before the court reviews it again. 

[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.

[osideguy92]

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.

[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.

[Torie]

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.

[Oswald Acted Alone, You Kook]

I want the 4th option (CA only, repeal DOMA).

[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.

[MyRescueKittehRocks]

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.

The result will not be in favor of gay marriage.

[Franzl]

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

[Fmr President & Senator Polnut]

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

Shhhh don't tell him that...

[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.

[Blue3]

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.

[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.

[7,052,770]

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

[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.

[Torie]

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.

Yes, that was the point Ernest made, and I find it compelling.

[Thomas D]

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.

[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.

[Jared]

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.

[Blue3]

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.

[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.

[Thomas D]

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.

[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.