Is the SCOTUS, as currently made up, the one you want deciding the long-term fate of SSM?

A win there, and SSM pretty much obtains legal par with male-female marriage.

However, a loss there opens the door for decades of discrimination to come.

Do you want the SCOTUS to hear the issue?

I suspect SCOTUS will not hear the case. There is sufficient agreement at the District Courts to just let their rulings stand.

You seem to forget the rulings striking down DOMA and refusing standing for the proponents of Prop 8.

I'm comfortable with this court ruling on Gay Marriage Bans.

The courts are highly political. Especially the High Court.

They realize that public opinion is firmly behind Gay Marriage.

Their ruling would certainly reflect that.



Edited 1 time(s). Last edit at 06/25/2014 04:54PM by sonoma.

In DOMA, the federal government itself advocated that a federal law was unconstitutional and did not defend the law at the SCOTUS level.

The SCOTUS denied the Prop 8 appeal on a technicality only. If a future attorney general of California want to challenge the ruling on appeal, the door is open to do so.

I think the court will hear, at some point, a major SSM case, and I think it will be a 5-4 vote. One that could go either way.

Both rulings were victories for Gay Marriage and its advocates.

That they were. However, I don't think the cases sent a signal of how the court will rule on the Big 1.

It is fundamental in the reasoning the courts are using to rule in favor of gay marriage. SCOTUS would virtually need to overrule itself to rule against gay marriage now.

Actually, the way the DOMA case was decided could be used as precedent to allow states to ban SSM.

DOMA was decided, largely, as a state's rights case. As in DOMA restricted individual state's ability to define marriage.

It was a narrow 5-4 decision, with the fifth and deciding vote only voting to overturn when it was framed that way.

None of the four votes to uphold DOMA are likely to vote in favor of SSM in any case. That means in order to uphold the 10th Circuit's decision, the coalition of five must hold together.

Conversely the four liberal judges will not vote against the 10th.

That means, once again, Kennedy holds the power. He leans in the direction of state's rights.

If you reread the opinion, you'll see that he saw no rational reason to deny equal treatment to gays. That was in fact the second major decision--the first was about a decade ago--that he wrote in that fashion.

The Scalia dissent in the DOMA case explains exactly why Kennedy's opinion makes legalization of gay marriage inevitable. The logic in that dissent, incidentally, has been cited in more than one of the district and circuit court decisions overturning bans on gay marriage.

If Kennedy is the swing vote, equality has won.

The entire opinion, taken as a whole, is nothing but a defense of New York's rights to allow SSM.

The court had an opportunity, both in DOMA and Prop 8, to issue a broad decision striking down bans on SSM. In both cases, it declined to do so and decided the cases on very specific technical issues. Both times by 5-4 margins.

I think counting Kennedy as a sure vote on whether or not SSM is protected by the Constitution, when that vote finally arrives, is unwise.

Kennedy - his opinion was based on equal protection.

Did you really read the opinion?

Yes, it said the DOMA law meant the federal government treated state-sanction SSM differently from state-sanctioned MF marriages.

It also said that states have an inherit interest in defining marriage, within Constitutional protections.

It did not define what those protections are.

At its heart, the ruling was that New York's right to define marriage was key.

It is a fundamental principle of constitutional law that a court must always rule on the narrowist grounds possible. In other words, whenever it can the SC will "kick the can down the road." That the court chose to do so in this case was predictable. Kennedy is a judicial conservative: he will always do that.

But the case was determined on the basis of the 14th amendment. Whent he court says, "this is a states rights issue within the limits of the constitution," it is saying that the constitution is relevant. When the court then says it isn't fair to treat different groups differently, it is employing "equal protection" language. Now as a matter of fact, that means applying "strict scrutiny," a standard that has historically never been met. In theory a state law could withstand "strict scrutiny," but in practise it has never happened.

As Scalia noted, the instant the majority chose to employ "equal protection" as the basis for their decision, they effectively ruled on the whole issue. The ruling was narrow but it was based in a body of jurisprudence that leaves no room for states to act contrarily. Scalia, a political conservative and hack, was correct when he saw what Kennedy, a judicial conservative, had written on the wall.

More succinctly, it is perfectly permissable for the federal or state governments to treat different groups of people differently. You have to be 16 to get a driver's license, felons cannot vote, people cannot practice medicine without a license. . . The constitution is not relevant in those cases.

The only time the supreme court will intervene to prevent inequitable treatment of different groups of people is if a "fundamental" constitutional right is being violated. By deciding that it had a role to play in this, the SC determined that the right to marry is a "fundamental right." No state infringement on a "fundamental right" has ever withstood constitutional review.

Game over.

That's correct, but there is a subtle clarification that should be made to the "constitution doesn't apply" statement. The constitution applies anytime the government treats similarly situated people in different ways due to the due process and equal protection clauses. It just gets a lower "rational basis" standard.

Driver's licenses, etc. distinctions all must still pass the constitutional muster of being a "legitimate government interest" that is being regulated by affecting a group of people that is "rationally related" to achieving that government interest. Even denying driver's licenses to 14 year olds requires some constitutional hurdle to leap over (short though it may be).

You're right that government restricting a fundamental right and therefore being subject to the much higher "strict scrutiny" level is a big deal. There, if the government tries to regulate that fundamental right (freedom of press, life, religious freedom, etc.), it must show that the regulation affects only a "narrowly tailored" group to achieve a "compelling" (read: really important) government interest.

The thing that's so awesome about today's ruling is that it jumps up to that higher "strict scrutiny" standard for the first time and says that having access to the institution of marriage is a fundamental right for all people, not just straight people, and a government can only restrict that in a very narrow and tailored way for a really important reason. "We think gay people are yucky" and "everyone deserves a parent with different genitals" won't cut it as good reasons. And just banning all gay people under the assumption that none of them can parent as well as the crappiest straight parent won't float either.

Put that in your pipe and smoke it brethren.

The "legitimate government interest" standard does indeed apply to mundane restrictions and only requires "rationally related" reasons. I ignored that because of the Kennedy opinion went right past that issue and used the language that the SC has historically applied to "fundamental rights," "strict scrutiny," and an overturning of the state law.

I think that if you read the opinion closely, and even that originally penned by Kennedy years ago, you'll notice that he used words and phrases that are usually only present in "strict scrutiny" analysis. I think, in short, that Scalia was right in both of his dissents: Kennedy has been on the record for a very long time as someone who thinks that the right to marry is "fundamental" and hence that sexual orientation is not an acceptable basis for marital discrimination.

When the appellate court used the "strict scrutiny" standard, it was merely feeding Kennedy and the SC majority the words for which they had asked. In effect, Kennedy told the lower courts how to frame their decisions so that the SC would eventually find in favor of marriage equality. Now all the SC has to do, when reviewing this appellate decision, is to say that the judge applied the correct standard and reached the correct decision.

Agreed, and as you know, Kennedy's weird middle ground has been called "intermediate scrutiny" or "rational basis with a bite". As a gay man (and as a human being) I'm thrilled to see the circuit court jump right over that and go straight to strict, where it should be.

Let's hope you're right. My best guess is that the Supreme Court will deny cert and wait until they are forced to rule because of conflicting decisions in the circuits (which, fingers crossed, may not even happen at this rate). If they deny cert we'll be having weddings in Utah again come fall. :)

I suspect you are right. They will be as conservative as they possibly can, but the writing is on the wall.

I incidentally know Kennedy's son. Both men are politically conservative, but the father is less politically conservative than judicially so. The first time he made a controversial--by which I mean judicially restrained but politically liberal--decision, the son jested: "I guess my dad is a communist."

I hold the father in high regard. He is someone who's own political inclinations are always subordinate to what he views as the correct interpretation of the laws and the precedents. He's been on the right side of this gay rights issue for a long, long time.

I'm not sure what you are getting at. The initial ruling stated quite plainly that recent SCOTUS precedent was a major deciding factor in ruling against Amendment Three.

It seems like you want this to be more complicated than it really is. Which by the way is pretty much the only defense that marriage bigots have. They argue that SSM isn't as simple as a couple getting married. They use tired and patently untrue arguments that are at their core simply an emotional plea to not allow things that are outside of their comfort zone. Legal proponents of SSM use a very simple argument; the Constitution of the United States forbids codified discrimination.

As to your original question. If by chance the SCOTUS overturns the ruling it will be a very narrow ruling. The SCOTUS by nature rarely ever issues a broad ruling. For example, the Arizona emigration law that was a massive piece of shit wasn't struck down. It was rendered toothless. If SCOTUS decides to overturn the District Judge's ruling it could be on something random and unrelated to the larger issue. It happens a lot.

And I am betting they are way better at interpreting SCOTUS decisions that you.

The decision to send back the case to California was made by a strange coalition:

Majority: Roberts, joined by Scalia, Ginsburg, Breyer, Kagan
Dissent: Kennedy, joined by Thomas, Alito, Sotomayor

Clearly they could not reach a consensus on what to do, so Roberts and Scalia agreed with Breyer, Kagan and Ginsburg to punt. The lack of standing was a cover for their decision not to decide.

The Punt was a hell of a coup in my opinion. The way the system is designed things like this are supposed to filtered out on their way up. You decide something that has a technicality you open yourself up to criticism from a new court. If SCOTUS ignores a technicality the next version of the SCOTUS doesn't have to review the entire issue just the technicality.

It is excruciatingly slow, but also necessarily slow.

The SC failed to predict the rapid change in public opinion, and dozens of judges using Windsor to throw out state bans. Now they are backed into the very corner they tried to avoid.

The status quo is unwieldy and unnecessarily complicated. Right to marriage should not be denied by state borders and moving across the US should not negate your marriage license like Dred Scott.

Good question in my opinion. Two years ago I would have said I don't want the court to decide the issue. I thought it was likely to be a loser.

Now, given what seems to have been a dramatic shift in public opinion and a lot of lower court decisions prohibiting a ban on same sex marriage, I do want the Supreme Court to decide the issue. I agree it will be 5-4 - possibly 6-3. I think there may be one of the four more conservative judges who can look 40 years down the road and doesn't want history to judge him as a primitive thinker.



Edited 1 time(s). Last edit at 06/25/2014 05:15PM by thingsithink.

I doubt the SC would decide in favor of Utah after what they did in California and for Windsor. Popular opinion is not overwhelming in favor of gay rights.

A decision that keeps the country split between slave and non-slave, er, I mean gay marriage and gay marriage bans creates a legal nightmare. They would still be left with the Gordion Knot of what to do with gay couples who move from California to Utah, or with Utah gay couples who marry in Hawaii on vacation. Can you lose your marriage simply by crossing state lines?

I expect SCOTUS to kick the can down the road as long as it can get away with it. Do I want that, or do I want them to hear the case and offer an opinion? I'm torn. A win means legal parity, yes, and of course it would be better and more just than a loss, but a win might have more dire long-term problems of crystalizing minority opposition than the gradual (but lately reallly rapid) state-by-state, circuit-by-circuit resolution. Wouldn't it be nice if they never had to weigh in, due to even the conservative (Texas-including) Fith Circuit decided to support equal rights?

Ha, I should have read the replies first, I said basically what you said here.

I doubt they will take it up at this time.

It is obvious that several members do not want to rule on this issue until there is a bigger majority of Americans who support it. That's not a legal reason it's a human nature reason, bbut with the past five years or so of these cases in the Courts below them, it appears their first choice is always to punt. And only take the case if there is no other way.

The Circuits are not divided on this issue and will not be until one of the circuits (likely the Fifth) issues a contrary ruling. THEN SCOTUS will be forced to take the cases on.

Since the 10th is also a conservative circuit, I still hold out hope the 5th sees the march of human progress and will not rule contrary, because they don't want their grandchhildren to think of them as assholes.

SCOTUS, the way it is set up gave the ruling that is the foundation of all the current federal case victories when it struck down part of DOMA.

I've really been enjoying the informed discussion here. You guys might enjoy following the comments over on www.equalityontrial.com. (Formerly Prop8 Trial Tracker.)

myself, I don't see how USSC could (or want to) over-rule the Dist Ct rulings in favor of SSM.


no legal reasoning here, just common sense

There are two reasons to think that this is a done deal--besides, again, the fact that the Kennedy majority signaled its application of an impossibly high standard to justify limitations on marriage equality.

The first is the fact that lower courts don't want to be overturned. Since the SC has already signaled its intentions going forward, ruling in favor of discrimination against gays will automatically resut in rejection. The SC is supposed to rule on technicalities if it can, so its rulings were proper. What is unusual is that the opinion made it perfectly clear what the standard will be going forward. It would be foolhardy for a lower court to uphold restrictions given how explicit the SC ruling was.

Second, there is no question about what happens when some gay couple marries in one state and then moves to another. The "full faith and credit" clause of the constitution says that the marriage must be treated as legitimate by other state governments. It may take a few years for the courts to adopt a uniform rule or for the SC to impose such a rule (perhaps not necessary given the fact that the lower courts know what the opinion says), but the combination of "equal protection" language, the rejection of Prop 8, and the "full faith and credit" clause combine to eliminate almost all doubt.

The extremely important decision which everyone is overlooking is the Ninth Circuit Court of Appeals has declined to reconsider a previous decision requiring “heightened scrutiny” in cases involving sexual orientation. This just came down two days ago.

The case was not about SSM directly, however a key point because the question of the degree of scrutiny for sexual orientation. Earlier this year, a panel found that the logical conclusion from Windsor is that it must have heightened scrutiny. In face of that ruling, Nevada declined to defend an appeal the the 9th Circuit by a gay couple which had lost at the district court level.

As the 9th Circuit Court rejected the call to hear the case by the whole court, it becomes the ruling precedent for that district.

"The implications of the denial were summed up in a dissent by Judge Diarmuid O’Scannlain who said the decision “is perhaps all but this court’s last word on the question whether the (U.S.) Constitution will require states to recognize same-sex marriages …”

"Peter Renn, a staff attorney at Lambda Legal who is part of the team representing the Nevada couples, said it would be difficult to overstate the significance of the 9th Circuit order.

“'Honestly, this decision is like a nail in the coffin of discriminatory marriage laws,' he said. 'The government’s burden in justifying discriminatory marriage laws became just that much harder.'

"Renn said of the 21 judges who weighed in on the question of rehearing the case, only three joined in the dissent."

The losing side has said that they will not appeal the ruling to the supreme court.

This is actually has more immediate significance than the 10th court. A federal district court Idaho has struck down a ban on SSM, and the appeal is pending. With this ruling, the appeal from Idaho should fail at the 9th Circuit Court level.

I believe that public opinion has changed enough even since last year that SCOTUS cannot reverse this. SSM will the rule of law within a few years, nationwide.

Agree with your description of both the state of public opinion and the beauty of the scrutiny standard. It may be relevant to add, though, that the ninth circuit is the most overturned in the country, widely considered looney.

Like you, I doubt that in this case they will be overturned. Even the ninth sometimes gets things right.