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Jun 24 2013

My Predictions on the Marriage Equality Cases

We’re about 8 hours away from (likely) hearing the result in both marriage equality cases, so here are my predictions: In the DOMA case, I expect section 3 of DOMA to be overturned on very narrow grounds (no declaration that sexual orientation is a suspect class requiring heightened review and no equal protection basis for the ruling, but still a win for equality). In the Prop 8 case, I think they either punt on it or hand down a very narrow ruling that strikes down Prop 8 but does not apply to other states. I feel more certain about the first prediction than the second one. I wouldn’t be shocked if they punted on both cases and I wouldn’t be shocked if they uphold Prop 8. I also wouldn’t be shocked if I got this all completely wrong. These are the most complex Supreme Court cases I’ve ever seen, in terms of the sheer number of possible outcomes, because of all the standing and procedural questions that could allow them to punt on them in various ways.

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  1. 1
    Zeno

    As a Californian who voted against both Proposition 22 (“traditional” marriage defined statutorily) and Proposition 8 (“traditional” marriage defined constitutionally), I certainly hope that the Supreme Court voids Proposition 8 and California becomes a big, big addition to the list of states where same-sex marriage is legal. I have my fingers crossed over Justice Kennedy, who wrote an unexpectedly strong opinion in the Lawrence v. Texas case that voided all sodomy laws. Kennedy was a colleague and friend to many important and powerful gay men while he was at McGeorge Law School in California, although not everyone knows that. It may have had an impact on him.

  2. 2
    Jasper of Maine

    I predict that no matter the outcome, Scalia will be quoting saying something incredibly asinine and inhuman.

  3. 3
    dukeofomnium

    Under Roberts, they punt whenever possible. I would be astonished if they decide the Prop 8 on anything other than standing.

  4. 4
  5. 5
    Gregory in Seattle

    My personal theory is that the Court will wait until the last possible moment to publish these rulings — which will, not coincidentally, place them right before most Pride celebrations in the US — then kick us all in the teeth by ruling on standing and punting, effectively giving us losing judgments.

    I will be delighted to be proved wrong, though.

  6. 6
    anubisprime

    This bunch of all ‘merican heroes will punt rather then definitive rule.
    I think that has always been the plan, and the intention.

    The judiciary, in any western country, are basically cowardly to the xth order of asinine, although they preweeperfer the term conservative with a small C…is tastes better then ‘snivelling cowardly pompous bigots’ that could make a positive difference to a significant proportion of the population but being rather shallow do not!

    The euthanasia debate in Blighty is another prime example of cowards unwilling to lead but content to follow tradition and will only commit when the rest of the world has moved on significantly then they brand themselves as progressives for following the band wagon, absolutely snivelling does not do them justice, literally!
    And the depths to which religion poisons their eyesight if not their hearts is simply scandalous.

    At best this present farrago will be a petulant fob off, but left mainly in individual state attitudes.
    DOMA is probably a spent bit of bigotry but, maybe a loophole is woven so states that will can.
    At best half-hearted criticism of Prop 8 is probably as far as it goes, it will probably remain on the statute books in some form.

    Nah!…if you want justice then SCOTUS is probably not the place to get it, unless you are a religious zealot of course they get a pass everywhere seemingly.

    But if I am wrong, and I sincerely hope I am, then I will celebrate in spirit with all those folks that have suffered under these ridiculous restrictions and discriminations under American law.
    I remain sceptical of these legal ‘gods’ I think they are more rubber stampers and socially retarded and reality challenged then as the epitome of a demonstration of a modern democratic legal process.
    They are not lions just sheep…with issues.
    Maybe they will surprise…I doubt it!

  7. 7
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    As a queer scholar who has done work on feminist analysis of constitutional sexual rights – and NOT specializing in reproductive rights narrowly – one would think that I would be up on this and would be ready to make a prediction. I’d like to go out there on a limb (either a different limb or the same) with Ed.

    But I just haven’t been able to do the research. I’ve read ALL the trial transcript from Vaughn Walker’s trial. I’ve read the VW decision. I’ve read the 9th circuit decision. I even read the transcript of oral argument before SCOTUS.

    But something in me just cannot speculate. I just cannot get into the heads of the justices who see this as a difficult issue. Usually I’m good at that. I see the other person’s argument well. It’s what has made me successful (when I have been) in putting forth arguments that convinced people to change positions on loaded topics like queer domestic violence and its implications for current anti-dv practices.

    But it’s been clear since I did some research in the 90s that the arguments against queer marriage are the exact same as the arguments against Catholic/Protestant marriages in Ireland (though, admittedly, they are more tense about it in the 6 counties than the republic), against interracial marriages in a whole bunch of places, but significantly for SCOTUS in the US, against marriages including folks with disabilities anywhere Galton had a significant influence (yes, the US too – we’re still arguing for eugenics all the time in the States), against marriages between royal families in Europe at the dawn of the 19th century, and even against those filthy, anti-god quakers in the 17th century.

    The arguments are the same. The grounding is religion. The empirically verifiable claims have never checked out. Discrimination is clearly happening on the basis of legal sex (Abigail applies for license to marry Bjorn & is granted one, Canute applies for license to marry the same Bjorn after Abigail’s engagement falls through & is denied). There is clearly discrimination based on religion (my religion says no queer marriage so YOUR religion which says yes queer marriage can’t marry queers). The government interest in marrying straight folks is still served regardless of whether or not queers get married. Even if you credulously believed that queer marriage is totally different from other radical marriages of the past, you could look to a decade – that’s right, a DECADE of marriage at the federal level in a number of countries and at the state level in Massachusetts and see every bit of evidence pointing to the arguments against having the same validity here that they have had in the Six Counties in re C/P marriage, in the South in re interractial marriages, in states from Oregon to Oklahoma in re “dysgenic” marriage, etc.

    You either have to be determined to ignore evidence OR you have to be determined to ignore the constitution.

    I don’t get it. Even thinking about what’s going on in the heads of people like Roberts & Kennedy is too damn painful.

    My prediction: a hell of a lot of people will be unhappy, and SCOTUS over time will look more and more like it’s crafted its ruling using arbitrary and invidious discrimination…even if prop 8 is overturned, even if sec 3 is overturned. They’ll use cowardly reasoning that leaves them defenseless against the charge that they are making crap up.

    They could say – pace Loving v Virginia – that the constitution has no unforeseen consequences, that it is not an aspirational document and that as we learn things about the world we still must use only the evidence of the 1868 when applying the 14th. It would be idiotic, but it would be a consistent legal theory and would treat the constitution – though not the populace – with respect.

    Or they could say that heightened scrutiny with regards to discrimination on legal sex applies even when the US advances another rationale [like, say, that gay sex is ooky], as it has done in US v Virginia (the VMI case). This is perfectly consistent with the constitution and past decisions. But it leads to a clear victory for one side at a time and on an issue where SCOTUS wants to avoid taking sides more than it wants to apply the constitution.

    I just can’t see a way for this to end well.

    And I don’t think it’s because of the complexity of possible legal outcomes. The Supremes always have the option of punting, of deciding in more than one way, of deciding on more than one ground or on one ground from among a number of grounds. It’s complex because they are not ruling out any of those possible outcomes on any consistent grounds which reasonable observers could use to wrap their minds around the cases possibilities.

    They **could** decide in any number of ways on any number of cases.

    They don’t because they have respect for the Constitution, past decisions, and legal traditions of what constitutes fair decision making criteria.

    This is pure Dworkinian chaos. This is legal realism at its most frustratingly inconsistent and unjust. It gives me stomach cramps just thinking about it.

  8. 8
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Holy crap – I just read the comments and “Ceremonial Heterosexuality” is the most beautifully concise and accurate way of framing the legal dodges that permit states to discriminate on the basis of same legal sex where queers are involved, especially queers wanting to marry.

    I’m shamelessly stealing that, Chiroptera.

  9. 9
    poxyhowzes

    IANAL, but I’ll take leave of my skeptical senses to predict:

    Prop8 will be much more of a cluster f**k than anyone (else) predicts:

    at least 5 opinions, at least 5 dissents, the upshot of which will be:

    — 9th circuit improperly asked California Supremes to advise a FEDERAL APPEALS COURT on Article III standing for the proponents.
    — Ergo, 9th Circuit failed to properly determine Article III standing. They (9th) needed to do it de novo.
    — Thus, case is REMANDED to 9th for another [proper] go at determining standing of the Proponents.

    Judge Vaughn’s decision meanwhile remains stayed.

    Hope I’m wrong (and there are so many ways I could be!) but If I’m right we’ll see an immediate signature-gathering effort in CA to overturn Prop8 at the ballot box, an effort that will succeed and thus render the Court case moot.

    pH

    That’s about a 90-yard punt, I guess.

  10. 10
    whheydt

    Let me get the two short points out of the way first…

    SCOTUS has, apparently, kicked the can down to road to later in the week. There is talk of decisions coming down on Tuesday and Thursday. With only three cases left, and two of those having related subject matter…I’d tend to bet that DOMA and Prop. 8 get dealt with on Thursday.

    *IF* SCOTUS decides to uphold Prop. 8, *then* there will be petitions coming out to put a measure on the ballot to remove the Prop. 8 language from the California state constitution. I have heard that people are ready to go with them and are just waiting to see what SCOTUS does. That the upcoming weekend is the big Gay Pride weekend is SF, you can just bet that people would be out in force to get a petition drive rolling.

    If Ed is correct that SCOTUS will decide the Prop. 8 case narrowly, there is a relatively easy way to do that. All they have to do is accept the reasoning from the 9th Circuit, which said–in essence–that once granted by the State, a right cannot then be taken away. No state other California has granted that gays have the right marry (found in the state constitution by the State Supreme Court–so there is no Federal issue there), so that reasoning would restrict the impact to California. (This is, by the way, a reason why I think the pro-Prop. 8 people were really stupid to take this case to SCOTUS. The 9th Circuit decision was just about the best outcome they could have hoped for, and the risk of a wider ruling should ahve given them pause. There is no accounting for fanatics, I guess.)

    If Ed’s contention that SCOTUS will “decide not to decide” by tossing the case on standing grounds, then things get interesting. At what level of the courts does the standing fail? At SCOTUS only? The the 9th Circuit decision holds. At the 9th Circuit? Then the trial court decision stands. At all? Then retrial. There is at least one county clerk (Imperial County) ready to take a shot at defending who the pro-Prop.8 people believe would have standing. Since the initial action specifically name Alameda County, I have my doubts, though.

    For all I know, SCOTUS could effectively order the state to defend Prop. 8 in a do-over at some level, something the pro-Prop.8 folks are deathly afraid of, because the governor and AG would, basically, walk into court and say ‘This is indefensible, do as the plaintiffs ask.’ Yes, it amounts to a “heckler’s veto” from the governor and AG, but if the backers of Prop. 8 lack standing, then who has standing?

    In any case, if there is a delay in resolving the issue, a petition and ballot drive could take off at any time.

  11. 11
    whheydt

    Re:poxyhowzes @ #9.

    I believe there is precedent for a Federal appeals court to ask for the opinion of a state supreme court on issues that touch state constitutional issues, and that the 9th Circuit wasn’t bound by the CA Supreme Court opinion, so that is–I think–not a likely reason to remand the case.

    The possibility of a badly fractured set of opinions with no clear majority, or perhaps no majority at all, is a distinct possibility. If there is no actual majority opinion, then the 9th Circuit decision would go into effect, though.

    I am still more than a little bemused the SCOTUS took the case at all. One would have though that, since there is likely no clear majority on either side going in, and it would be seen as an ideologically important decision, each wing would decide to close their eyes and wait for a case where their side would likely win.

    Does anyone know which 4 justices voted to accept the case in the first place?

  12. 12
    Michael Heath

    Jasper of Maine writes:

    I predict that no matter the outcome, Scalia will be quoting saying something incredibly asinine and inhuman.

    That’s about as far my predictions go.

    I’ve actually tired a bit of watching J. Scalia act out like Rush Limbaugh with a fake law degree where I’m now more intrigued with how Justice Alito will demonstrate his personal bitterness. I’ve always been intrigued by Clarence Thomas’ bitterness and how it’s negatively effected his mental health, where Alito appears to me to be every bit as warped as Thomas and perhaps getting worse.

  13. 13
    vmanis1

    Some comments from a Canadian who is not a lawyer.

    1. Both Canadian and U.S. judicial tradition is to construe cases as narrowly as possible. Neither of these cases was a perfect case on the principle of marriage equality, as both are weighed down with special circumstances. Windsor (the DOMA challenge) is not about marriage—a state responsibility—but about federal recognition of that marriage. Similarly, Perry has all this baggage about marriage having been legal in CA before Prop 8 banned it (thus, Prop 8 doesn’t refuse to grant a right, but actually removes a right). Given all of this, I’m hard-put to see how the judges, even if they wanted to, could come up with an expansive ruling. And that’s fine with me. A ruling is good news if it advances the cause of marriage equality, even if it doesn’t go all the way.

    2. I sincerely hope Kennedy doesn’t base his decision on his pleasant experiences with LGBT people. He should use the law. The old saying is `fiat justitia ruat caelum’ (let justice be done though the heavens fall), in other words, the judges should apply the laws, not apply their personal prejudices or presumed consequences, even if it doesn’t result in what I would consider a desirable decision. Applying prejudices is something more characteristic of Scalia or even Bork than of jurisprudence.

    3. People are saying that Kennedy (and maybe Roberts) are the swing votes on these. According to seniority, the remaining decisions belong to the most senior judges, including decisions would be written by Roberts, Scalia, Kennedy, or Thomas. Not sure we can read anything into that (though I would actually expect a compromise decision to be written by Kennedy).

    4. Speaking of Scalia, he has already shot his wad in a speech a couple of days ago. The Supreme Court, he says, should not be deciding issues of morality. That is the legislative branch’s responsibility. True enough, but Perry and Windsor aren’t about morality, they’re about law. (My lawyer friends always remind me that there’s a huge gulf between law and justice.) He really is an idiot, something which I was reminded of a few months ago when he misused the phrase `reductio ad absurdum’. I very much doubt whether he could pass a freshman logic course.

  14. 14
    Chiroptera

    Is there anyone they can issue a ruling here that would further undermine Fourth Amendment protections? ‘Cause I’d totally expect them to rule that way!

  15. 15
    timberwoof

    So when they decide on the case, what will white smoke or black mean? If they refuse to decide, can we lock them in the courthouse until they do?

  16. 16
    whheydt

    Re: vmanis1 @ 13:

    On the expansive vs. narrow ruling… In the Prop. 8 case, the trial judge issued an expansive ruling. He used the equal protection clause of the Constitution plus the 14th Amendments extension of rights to the several states to rule that barring same-sex marriage was an equal rights issue and the state couldn’t do it.

    It was the 9th Circuit Court of Appeals that narrowed that to say that, once granted, a right couldn’t be taken away, so that California couldn’t enact a ban on SSM, since the same was allowed for a few months between the State Supreme Court decision and the passage pf Prop. 8.

    There are some pertinent side issues to go along with all that.

    First, even after being asked, the State Supreme Court declined to stay their ruling legalizing SSM until after the election. Prop. 8 was already approved to appear on the ballot.

    Second, the backers of Prop. 8 made no attempt to annul the same-sex marriages that took place in California–several thousand of them–between those two events.

    Yes, you read it right. There are same sex couples that are legally married in California already and no one is attempting to nullify those marriages (unlike what happened when Gavin Newsom directed the City/County Clerk to allow gay couples to get married in 2005).

    I wouldn’t be surprised if there is a badly fractured decision that gives no clear guidance for either side or any state…other than California.

    The only thing that is clear at this point is that SSM will be legal in California, with the remaining question being when that will occur.

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