5 possible outcomes of the Supreme Court Prop. 8 case

Wiseone said:

The right to marry someone of their choosing obviously,

Click to expand...

All due respect, that is not a "right". No one is denying them the opportunity to be with whomever they choose for as long as they choose, doing whatever they choose, within other constraints that apply to all (such as age of consent, etc.)

the right to have the person they've identified as the love of their life receive the same benefits that anyone else would. You may not think of it as a right but when say for example a gay Soldier is killed or wounded in combat, the spousal benefits that would normally go to the spouse of a straight Soldier are not given to a gay one, likewise if they have children they are not given the same benefits either. Even if that Soldier is not killed in combat his spouse is still denied medical care from the military, on post housing, and all the other benefits hetro couples would enjoy.

Click to expand...

Yes, but this first assumes that marriage is a "right". That has not been determined. Further, as this was a CA case, CA Civil Unions already grant all those privileges to a same-sex union. As noted earlier, and established in Law, the government has a vested interest in promoting opposite sex marriage, in that it better regulates and promotes procreation.

This is because the Defense of Marriage Act defines marriage as between a man and a woman, and being Federal Law it applies to the US military, so even if this Soldier was legally married in his state to someone of the same sex the military does not recognize it.

Click to expand...

Which may make tomorrow's hearing all the more interesting.

Some people, I don't know if this includes you, however view this as acceptable because if God forbid a male Soldier sees his husband in hospital or even on his deathbed then some how that will undermine the meaning of my marriage or the already trashed institution of it.

Click to expand...

I think there a broad difference between those who oppose SSM, and those who would also oppose just the creation of a civil union, or such as a power-of-attorney, that would allow a same-sex couple to have full visitation rights in case of hospitalization. There are plenty of ways for same-sex couples to obtain that privilege.

Is that equal protection under the law? Is it equal protection that a man who in every aspect of his life treats another man as his spouse be denied the same rights and privileges as a man who treats a woman as his spouse?

Click to expand...

You are assuming that the institution of "Marriage" is a right, and are muddling it with "privileges". I do not yet see where anyone linked to a valid "equal protection" argument either. As we have a DOMA that has not been deemed Unconstitutional, and do not otherwise have a right for any two folks to get married, much less 3, there is no foundation for an "equal protection" case. Heck, 41 states currently do not allow SSM.

What possible reason is there to not allow this, what do we as a society or as individuals gain from denying it? What benefit is there? Is it just because it makes some people uncomfortable because its against their personal values? Is that reason enough to deny someone all these privileges enjoyed by hetero couples? And what if the shoe was on the other foot, and someone was trying to take away something important to you because it was against their values? Would you still feel the same since they were in the majority?

Click to expand...

I reject your argument. First off, I see a law as needing an affirmative value, or in this case, as protecting a clear "Right". That has not been at all established with SSM. Your argument could otherwise be applied to polygamy.

I also reject the "what if ... taking away something important to me" argument. That is to assume that I had something to begin with, and that it was now being legislated against.

Deuce said:

Other way around actually. They might rule that SSM opponents had no standing to file the SCOTUS case. This would leave the existing ruling in place - overturn of prop 8.

And yes. They seem reluctant to set a nationwide precedent either way.

Click to expand...

I've seen it explained both ways, so I'm not sure what to think.

And that's not even bothering with your slippery slope bestiality bull****. Animals can't sign legal contracts.

Click to expand...

I'm pretty sure that 10 years ago or so people would have held out same sex marriage as an example of a ridiculous, impossible slippery slope outcome.

Wiseone said:

And as was also said before the court, what about the elderly, infertile, or those in childless marriages? Why are these allowed if the argument against gay marriages is that they do not produce children, when these types of marriages do not either?

Click to expand...

That was answered by Scalia, I believe. Again, the original basis for Marriage was to promote procreation and families. Old folks getting married still promotes that model. We call it "Grandparents", who still can naturally nurture their older kids and grandkids. "Fertility" is relative with advances in science. And perhaps most importantly, other case law indicates that it would be Unconstitutional to inquire, much less test for "fertility" as a prerequisite for issuing a marriage certificate.

The fact remains that the State has a vested interest in promoting heterosexual marriage.

Further, the argument made is not "against gay marriage". The argument is as to why the State has a proper interest in establishing the Institution of Marriage as it has. That is a completely different argument than how you attempted to frame it.

Deuce said:

Banning same-sex marriage does not promote procreation. This fails the test of intermediate scrutiny.

Click to expand...

If you note, and in words that I used earlier, it is in the states' interests to "promote and regulate". That is established legal basis.

LowDown said:

I've seen it explained both ways, so I'm not sure what to think.

Click to expand...

If SCOTUS refuses to hear the case based on no standing to bring suit, it automatically means that the circuit appeals court ruling is the ruling, but it doesn't bind the other appeals courts to the same ruling, i.e. no precedent.

Eighty Deuce said:

All due respect, that is not a "right". No one is denying them the opportunity to be with whomever they choose for as long as they choose, doing whatever they choose, within other constraints that apply to all (such as age of consent, etc.)



Yes, but this first assumes that marriage is a "right". That has not been determined. Further, as this was a CA case, CA Civil Unions already grant all those privileges to a same-sex union. As noted earlier, and established in Law, the government has a vested interest in promoting opposite sex marriage, in that it better regulates and promotes procreation.




Which may make tomorrow's hearing all the more interesting.



I think there a broad difference between those who oppose SSM, and those who would also oppose just the creation of a civil union, or such as a power-of-attorney, that would allow a same-sex couple to have full visitation rights in case of hospitalization. There are plenty of ways for same-sex couples to obtain that privilege.



You are assuming that the institution of "Marriage" is a right, and are muddling it with "privileges". I do not yet see where anyone linked to a valid "equal protection" argument either. As we have a DOMA that has not been deemed Unconstitutional, and do not otherwise have a right for any two folks to get married, much less 3, there is no foundation for an "equal protection" case. Heck, 41 states currently do not allow SSM.



I reject your argument. First off, I see a law as needing an affirmative value, or in this case, as protecting a clear "Right". That has not been at all established with SSM. Your argument could otherwise be applied to polygamy.

I also reject the "what if ... taking away something important to me" argument. That is to assume that I had something to begin with, and that it was now being legislated against.

Click to expand...

Ok lets take away the "rights" question for a moment. Is there any reason why people should not be allowed to enter into a "contract" of marriage with another person of the same sex and receive all the benefits as any other two people gain from that marriage? I talk a lot about the military because that is where its personal for me, but is there any reason why if two men want to marry why the one who is not a Soldier should not receive military health care the same way the non-spouse of a man/woman relationship would?

What possible reasons exists to not allow for gay marriage? Is there a definitive link between birth rates and allow gay marriage? Does not allowing gay marriage really increase birth rates? And even if it did, should the state really be using gay marriage as a means to influence the birth rate?

And can we look back to interracial marriage for some legal context? In Loving v. Virginia of 1967 the SCOTUS ruled that laws banning interracial marriage violated the 14th amendment rights of those individuals who wanted to marry outside of their race, specifically under the equal protection clause. Not only that but in the Court's opinion on the ruling it specifically stated that marriage was a right. So why can we not now over 40 years later, say that anti gay marriage laws are unconstitutional under the 14th amendment? That for the government to say you can only marry outside your sex is violating equal protection?

Loving v. Virginia - Wikipedia, the free encyclopedia

LowDown said:

I've seen it explained both ways, so I'm not sure what to think.

Click to expand...

I want to say that they may decide that CA can do what CA wants to do (or has done). That this case does not meet Constitutional muster either way.

I don't have a lot of faith that SCOTUS will knock down prop 8 because they are too concerned about political climate. What I don't understand is how prop 8 can pass the Equal Protection smell test in this country. If we acknowledge that gay people are equal citizens in today's world, then SSM is not creating a new right but rather extending an existing one.

The answer should be obvious, but America has become upside down backwards land as of late so I can't expect the courts to make a sane ruling.

Redress said:

Dammit, some one beat me to it with the link. SCOTUSBlog, always excellent reading.


Slippery slope arguments are inherently weak.


Do you have any clue what a victim is? It's something that SSM does not have. False comparisons are false.



Your opinions on gays is irrelevant.

Click to expand...

Slippery slope arguments often have a lot of predictive power. Who would have guessed that we would slide down into taking gay marriage seriously except those who have pointed to the decline in traditional values overall?

Victims are irrelevant as far as the definition of marriage is concerned. But then liberals often claim that people offended by what others say are thereby victims, so why not people who are offended by gay marriage?

Funny to see people claiming that opinions are irrelevant in a debate forum.

Wiseone said:

Ok lets take away the "rights" question for a moment. Is there any reason why people should not be allowed to enter into a "contract" of marriage with another person of the same sex and receive all the benefits as any other two people gain from that marriage? I talk a lot about the military because that is where its personal for me, but is there any reason why if two men want to marry why the one who is not a Soldier should not receive military health care the same way the non-spouse of a man/woman relationship would?

Click to expand...

That comes down to the basic definition of "marriage", again raised by Scalia today. There are also remedies to the above that do not require changing that definition. CA already has laws that apply within its jurisdiction. The question is then if it is proper for the Federal Government, with such as the Military, to not also allow those privileges outside of traditional marriage. That is a different question than redefining the qualifications for the legal institution of Marriage.

I have personal interests too, btw. I am ex-military. I have a brother legally married to his same-sex spouse. So I am qualified too

What possible reasons exists to not allow for gay marriage? Is there a definitive link between birth rates and allow gay marriage? Does not allowing gay marriage really increase birth rates? And even if it did, should the state really be using gay marriage as a means to influence the birth rate?

Click to expand...

That is a non-sequitur. I am not arguing the feel-goodedness of gay marriage, one way or the other. Frankly, I do not care.

And can we look back to interracial marriage for some legal context? In Loving v. Virginia of 1967 the SCOTUS ruled that laws banning interracial marriage violated the 14th amendment rights of those individuals who wanted to marry outside of their race, specifically under the equal protection clause. Not only that but in the Court's opinion on the ruling it specifically stated that marriage was a right. So why can we not now over 40 years later, say that anti gay marriage laws are unconstitutional under the 14th amendment? That for the government to say you can only marry outside your sex is violating equal protection?

Loving v. Virginia - Wikipedia, the free encyclopedia

Click to expand...

This argument got ripped to shreds today. I encourage folks to listen to the approximately 90 minute presentations. There are no tangible legal argument parallels between the case for inter-racial marriage and same-sex marriages, in that the reasons for overturning bans on the former do not apply to the latter. This was clearly noted by two Justices (Roberts and Scalia, I think). Note that the audio of today's proceedings does not identify who is speaking, unless one is addressed by title by someone speaking.

LowDown said:

I've seen it explained both ways, so I'm not sure what to think.

Click to expand...

If SCOTUS kicks it back on procedural grounds, the existing ruling stands. The 9th circuit court overturned prop 8 in February of last year.

I'm pretty sure that 10 years ago or so people would have held out same sex marriage as an example of a ridiculous, impossible slippery slope outcome.

Click to expand...

It's not a slippery slope outcome to begin with. Animals cannot enter legal contracts, people can. Gay people are people and nobody has ever questioned that. There's no link between "let two consenting adults marry regardless of gender" and "let animals sign legal contracts of any sort."

Eighty Deuce said:

If you note, and in words that I used earlier, it is in the states' interests to "promote and regulate". That is established legal basis.

Click to expand...

Intermediate scrutiny requires that a particular method of discrimination serve an important state interest, and be directed at furthering that interest. Same-sex marriage bans do not further this interest in promoting and regulating procreation, therefore are not an argument relevant to same-sex marriage bans.

LowDown said:

Slippery slope arguments often have a lot of predictive power. Who would have guessed that we would slide down into taking gay marriage seriously except those who have pointed to the decline in traditional values overall?

Victims are irrelevant as far as the definition of marriage is concerned. But then liberals often claim that people offended by what others say are thereby victims, so why not people who are offended by gay marriage?

Funny to see people claiming that opinions are irrelevant in a debate forum.

Click to expand...

Why are victims irrelevant? If you can't articulate any harm whatsoever done to people by allowing same-sex marriage, doesn't that drastically weaken the argument for banning it? You keep talking about a decline in values, definition changes, etc, but can you quantify any actual negative impact of any sort?

Northern Light said:

I don't have a lot of faith that SCOTUS will knock down prop 8 because they are too concerned about political climate. What I don't understand is how prop 8 can pass the Equal Protection smell test in this country. If we acknowledge that gay people are equal citizens in today's world, then SSM is not creating a new right but rather extending an existing one.

The answer should be obvious, but America has become upside down backwards land as of late so I can't expect the courts to make a sane ruling.

Click to expand...

I am going to take issue with you here. I think that many of the arguments against are that marriage is not a "right", but rather an extension of privileges that meet certain prerequisites. Which then makes it a question of prerequisites.

Let us not lose sight of the fact than 9 states allow SSM with full privileges. Meaning that it is conceivable that this is not a Constitutional issue. Would not be the first instance of varying privileges between states.

Eighty Deuce said:

I am going to take issue with you here. I think that many of the arguments against are that marriage is not a "right", but rather an extension of privileges that meet certain prerequisites. Which then makes it a question of prerequisites.

Let us not lose sight of the fact than 9 states allow SSM with full privileges. Meaning that it is conceivable that this is not a Constitutional issue. Would not be the first instance of varying privileges between states.

Click to expand...

Supreme Court precedent clearly states that marriage is a "basic civil right." One so well-protected that it cannot even be denied to prisoners. (who through due process of law have lost any number of civil rights)

LowDown said:

Slippery slope arguments often have a lot of predictive power. Who would have guessed that we would slide down into taking gay marriage seriously except those who have pointed to the decline in traditional values overall?

Victims are irrelevant as far as the definition of marriage is concerned. But then liberals often claim that people offended by what others say are thereby victims, so why not people who are offended by gay marriage?

Funny to see people claiming that opinions are irrelevant in a debate forum.

Click to expand...

No, victims are a clear distinguishing point. Animals and minors cannot consent, and so are victims. No one is a victim in a SSM. You have no right to not be offended, nor will I ever make any argument otherwise, so you can pack that straw man away. Your opinions are irrelevant in regards to the law.

Eighty Deuce said:

That comes down to the basic definition of "marriage", again raised by Scalia today. There are also remedies to the above that do not require changing that definition. CA already has laws that apply within its jurisdiction. The question is then if it is proper for the Federal Government, with such as the Military, to not also allow those privileges outside of traditional marriage. That is a different question than redefining the qualifications for the legal institution of Marriage.

I have personal interests too, btw. I am ex-military. I have a brother legally married to his same-sex spouse. So I am qualified too




That is a non-sequitur. I am not arguing the feel-goodedness of gay marriage, one way or the other. Frankly, I do not care.



This argument got ripped to shreds today. I encourage folks to listen to the approximately 90 minute presentations. There are no tangible legal argument parallels between the case for inter-racial marriage and same-sex marriages, in that the reasons for overturning bans on the former do not apply to the latter. This was clearly noted by two Justices (Roberts and Scalia, I think). Note that the audio of today's proceedings does not identify who is speaking, unless one is addressed by title by someone speaking.

Click to expand...

Well I would be hesitant to say that an argument is invalid because one justice may disagree with it, there are 8 others of course.

I'm curious, if we are only talking legaleses what is your argument against gay marriage, or am I not looking at the correct context, is it more of an argument that a Proposition should stand in your eyes?

Transcript in neat format, assuming the link works: Hollingsworth v. Perry | The Oyez Project at IIT Chicago-Kent College of Law

Note what the arguments actually are and are not.

Deuce said:

If SCOTUS kicks it back on procedural grounds, the existing ruling stands. The 9th circuit court overturned prop 8 in February of last year.

Click to expand...

Correct. As I have noted, 9 states already have SSM. Their laws are not on the chopping block, are they ? Is anyone challenging those laws ?

Intermediate scrutiny requires that a particular method of discrimination serve an important state interest, and be directed at furthering that interest. Same-sex marriage bans do not further this interest in promoting and regulating procreation, therefore are not an argument relevant to same-sex marriage bans.

Click to expand...

Frankly "Because I say so" is not much of an argument. The precedents that I noted, and which different Justices noted today, would seem far more informed on this than you ... or I.

Heterosexual sex makes babies. That is an enormous issue, with long-lasting repercussions of every sort, with any society. That is the basis for the origin of "Marriage", and all the legalities it entails.

Nice summary from SCOTUSBlog, with a ton of links to follow up with: Evening round-up: Proposition 8 argument : SCOTUSblog

Excerpt:

At this blog, Lyle Denniston observes that, with the Justices so clearly split along ideological lines, focusing on Justice Kennedy to predict an outcome was an “even more reliable approach this time” than usual, and Justice Kennedy appeared strongly tempted to conclude that the case was improvidently granted. Thus, as Amy Howe observes in her review of the arguments “in Plain English,” “the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all.” Tom Goldstein explains that if these indications hold true, the Court’s ruling will take one of two forms: Either the Court could conclude that the proponents of Proposition 8 lacked standing to bring the claim, in which case it would “vacate the Ninth Circuit opinion but leave in place the distinct court decision invalidating Proposition 8,” or “the Court may dismiss the case because of an inability to reach a majority. . . . The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one.” In “Reaching a judgment,” Tom Goldstein reflects further on an additional option before the Court in Holingsworth light of its contemporaneous consideration of United States v. Windsor, the challenge to the federal Defense of Marriage Act: if the Court is unable to get five votes on any single issue, it may vote to vacate and remand the Ninth Circuit’s judgment in Hollingsworth for reconsideration in light of Windsor. [Disclosures: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in Windsor. Tejinder Singh, also of Goldstein & Russell, P.C., was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth.]

Click to expand...

Bolded represent the two most likely scenarios from the outcome to today's case. However, if there is one thing every one should have learned from the Obamacare/ACA ruling, trying to read too much into oral arguments is a very bad idea.

longknife said:

IMHO, Prop 8 was an act of 70% of the voters of California and the Fed courts should never have become involved. Less than 2% of Californians are trying to overturn the will of the majority. Is this what this nation has become?

Click to expand...

What it's always been, a Democratic Republic where the will of the majority is checked by the rights and liberties of the minority. Why? What do you want it to be?

Wiseone said:

Well I would be hesitant to say that an argument is invalid because one justice may disagree with it, there are 8 others of course.

I'm curious, if we are only talking legaleses what is your argument against gay marriage, or am I not looking at the correct context, is it more of an argument that a Proposition should stand in your eyes?

Click to expand...

Its not that simple, as there are priorities.

1) I do not think Marriage is a "right".

2) I do think it is a state-level issue.

3) I have interest in whether or not a state can pass such as a Prop 8. I note that all Prop 8 in CA really came down to was the word "Marriage". CA Civil Unions already had all the other privileges.

4) I think that the Federal issue, regarding benefits, etc., with such as the Military, is a very good issue. I would be content if it were resolved without changing the definition of marriage, as it had been done in CA.

I believe that I am very close to Rand Paul's position, which was to make all things "Civil Union", and then to add "Marriage" to some. Perhaps I have misstated or ever-simplified his position, but not by much I assume.

Eighty Deuce said:

Correct. As I have noted, 9 states already have SSM. Their laws are not on the chopping block, are they ? Is anyone challenging those laws ?

Click to expand...

Today's hearing is specifically California's Prop 8. Tomorrow they hear some arguments on DOMA, specifically section 3. Multiple court rulings exist overturning that section in more than one jurisdiction, so even if SCOTUS punts this one on procedural grounds the exact same case is just going to come back to them. With that, I expect they'll have to issue some sort of ruling.

Or maybe they're even more cowardly than I think they are

Frankly "Because I say so" is not much of an argument. The precedents that I noted, and which different Justices noted today, would seem far more informed on this than you ... or I.

Heterosexual sex makes babies. That is an enormous issue, with long-lasting repercussions of every sort, with any society. Theatis the basis for the origin of "Marriage", and all the legalities it entails.

Click to expand...

If you disagree, then explain to me how a same-sex marriage ban promotes procreation. Do gay people go "welp, I can't marry the person I love, so I'll marry someone of the opposite sex and have babies!" I just don't see that happening.

You noted some justices, primarily Scalia. Who is a piece of **** who has absolutely no problem ignoring his jurisprudence when it suits his ideology.

Eighty Deuce said:

Its not that simple, as there are priorities.

1) I do not think Marriage is a "right".

2) I do think it is a state-level issue.

3) I have interest in whether or not a state can pass such as a Prop 8. I note that all Prop 8 in CA really came down to was the word "Marriage". CA Civil Unions already had all the other privileges.

4) I think that the Federal issue, regarding benefits, etc., with such as the Military, is a very good issue. I would be content if it were resolved without changing the definition of marriage, as it had been done in CA.

I believe that I am very close to Rand Paul's position, which was to make all things "Civil Union", and then to add "Marriage" to some. Perhaps I have misstated or ever-simplified his position, but not by much I assume.

Click to expand...

Alright well,

1) The SCOTUS has in the passed said it was a right, that makes that argument tough in court.

2) Perhaps if that is your opinion but the DOMA has obviously made it a Federal issue one way or the other.

3)+4) I don't know if whether the word "marriage" or "civil union" is ultimately used really a big deal to me, it does kind of lead to the notion of a "second-class citizen" even if all the legal rights and benefits are the same.

Eighty Deuce said:

I am going to take issue with you here. I think that many of the arguments against are that marriage is not a "right", but rather an extension of privileges that meet certain prerequisites. Which then makes it a question of prerequisites.

Let us not lose sight of the fact than 9 states allow SSM with full privileges. Meaning that it is conceivable that this is not a Constitutional issue. Would not be the first instance of varying privileges between states.

Click to expand...

Whether you want to call it a right of a privilege doesn't really matter. The fact is that one group is receiving the privilege while another group who should otherwise qualify is not receiving it, based on discrimination. To me this is not a complicated issue. Equal Protection should apply. If the Fed acknowledges straight marriage it should acknowledge gay marriage. Leaving it up to the States to decide does not make sense. There is nowhere in this country that straight people are denied marriage for any reason other than incest, so to claim there are special reasons why gays should be denied does not add up.

SCOTUS needs to grow a pair and rule on Equal Protection. The worst case scenario is that SCOTUS won't hear the prop 8 case and CA can go about its business, but I would hope they would do more than that. I am tired of spending so much time addressing people's ignorance about homosexuality and SSM. Our country has more dire problems now. This debate needs to be ENDED already. Other countries where SSM is legal dealt with this a decade ago (i.e. Canada). They had one Parliamentary debate and then it was finished. We are now in our second decade of our national debate about this issue. It's pathetic and makes our nation look backward.

Just decide already. Are gays equal citizens or not? If yes, then give them the right/privilege. Then we can all move our with our lives and address more important things like the coming economic collapse.

Eighty Deuce said:

Its not that simple, as there are priorities.

1) I do not think Marriage is a "right".

Click to expand...

Legally, in the US, it is. You may not like it, but factually it is a right.

2) I do think it is a state-level issue.

Click to expand...

DOMA makes SSM a federal issue. Further, since marriage is a right, it is protected by certain aspects of the US constitution which states rights cannot trump.

3) I have interest in whether or not a state can pass such as a Prop 8. I note that all Prop 8 in CA really came down to was the word "Marriage". CA Civil Unions already had all the other privileges.

Click to expand...

Irrelevant to the case.

4) I think that the Federal issue, regarding benefits, etc., with such as the Military, is a very good issue. I would be content if it were resolved without changing the definition of marriage, as it had been done in CA.

I believe that I am very close to Rand Paul's position, which was to make all things "Civil Union", and then to add "Marriage" to some. Perhaps I have misstated or ever-simplified his position, but not by much I assume.

Click to expand...

If I understand correctly, your solution is to keep seperate and unequal types of marriage.