View Poll Results: How will SCOTUS rule?

Voters
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  • States can ban SSM and not recognize them from other states

    2 3.33%
  • States can ban SSM but have to recognize them from other states

    8 13.33%
  • States cannot ban SSM but do not have to recognize them from other states

    1 1.67%
  • States cannot ban SSM and have to recognize them from other states

    45 75.00%
  • No ruling, lack of standing

    1 1.67%
  • Something else

    3 5.00%
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Thread: Crystal Ball Time: SCOTUS and SSM

  1. #41
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by roguenuke View Post
    They're not and that would have to be a completely different case brought before the Court. The likelihood of such a case making it to the SCOTUS is actually pretty small. I can't even think of a situation where that would come up unless you had a state make all marriages "civil unions" and there was a conflict with another state recognizing them as marriages.
    That was a good explanation. Thanks for that.
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by WorldWatcher View Post
    Then that would be Civil Marriage as already exists.

    If no Civil Unions have been "legally identical" to Civil Marriage as many rights, responsibilities and benefits of Civil Marriage are only available in that context and are not available to Civil Unions.


    >>>>
    Another good explanation. I didn't know about civil unions. Now I do.
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  3. #43
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    Re: Crystal Ball Time: SCOTUS and SSM

    Kinda neat comment from the arguments this morning. Lawyer arguing against SSM bans closed by commenting on how many are framing things as who decides, the voters or the court, but instead the question should be "whether the individual can decide who to marry, or whether the government will decide for him".
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

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    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Crystal Ball Time: SCOTUS and SSM

    Live blog: Obergefell v. Hodges

    One very interesting aspect of the early argument was that it was primarily a set of questions about what "marriage" means as an institution, and accordingly, whether it is "irrational" or "invidious discrimination" to exclude gays and lesbians. As a consequence, you had some Justices emphasizing the "millennia long" definition of marriage as between a man and a woman, and other Justices -- like Ginsburg -- emphasizing the relatively new character of egalitarian marriage, now sponsored by the state governments, on which gays and lesbians were seeking to enter. You also had a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece). There was a parallel line of questioning about whether bans on interracial marriage were as consistent as the "millennia long" definition of marriage as uniting a man and woman. Doctrinally, this all seemed to float somewhere above the bottom line question of whether states were discriminating against gays and lesbians or somehow marking them as less favored members of society.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

  5. #45
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by roguenuke View Post
    Loving was decided on race despite neither race being actually prevented from entering into marriage. A person of any race was prevented from entering into marriage with certain other people based solely on race. There were several reasons this was found to be unconstitutional, but the main one was equal protection based on race. The same argument can be made here in regards to sex. No single sex is prevented from entering into marriage, but a person of a certain sex is prevented from entering into marriage with certain other people based solely on sex. In both cases, it can be said that the main reason for this discrimination is animus toward the people who would want to enter into such relationships and tradition.
    I agree with arguing animus - that has been used by Kennedy to say that a law does not meet rational basis review. But equal protection requires clear discrimination based on gender, not incidental discrimination. Unless it is proved the statute was intended to discriminate against men OR women, gender discrimination will not hold. The court has held that incidental discrimination, with a discriminatory purpose, is not sufficient to strike down a law under Equal Protection.

    Lovings was decided as violating the Equal Protection Clause AND the Due Process Clause. SCOTUS specifically listed both in their majority opinion. If you go the Equal Protection route in terms of gender, you are making a weak argument IMHO. All that would need to be shown is the law is gender neutral and was not intended to punish a certain gender. I seriously doubt there is legislative history on the matter showing the law was passed against men or women specifically. I would definitely argue animus and stick with rational basis before arguing gender discrimination under the Equal Protection Clause.

    On the other hand... Marriage is a fundamental right which requires strict scrutiny so as not to offend substantive due process. The due process clause has already been used in defense of gay rights. Seems like this is the much easier argument to make before the court.
    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

  6. #46
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Lursa View Post
    At the state level, it's simple matter of, if one person enters the marriage license "contract" and the other person is denied the right to enter into that contract based on gender, they are being discriminated against based on gender.

    As I wrote, this is not the best argument but at least before judicial scrutiny, it has a legitimate foundation. It is similar to the way (as I mentioned) that the EEOC has managed to protect homosexuals, using gender discrimination, in legal challenges that reached the federal level in employment issues.



    Er, so, yeah.
    Contracts are quid pro quo. In other words, one is contingent upon the other. One person cannot enter a contract. It really goes against the basic definition of a contract to say that one person entered a contract and a man or woman now cannot enter the contract.
    Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

  7. #47
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Helvidius View Post
    Contracts are quid pro quo. In other words, one is contingent upon the other. One person cannot enter a contract. It really goes against the basic definition of a contract to say that one person entered a contract and a man or woman now cannot enter the contract.
    Interesting. No one has explained that like that before and the claim wasnt investigated in depth, obviously.

    Thanks.
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  8. #48
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    Re: Crystal Ball Time: SCOTUS and SSM

    SCOTUSBLOG is suggesting that Option #1 is shot.


    From their LiveBlog:

    There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It's very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don't, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination
    Which would be Option #2, which I think is the best actual option here.
    Last edited by cpwill; 04-28-15 at 12:47 PM.
    Worth noting, Democrats: President Trump will have a Pen and a Phone. #Precedent.

  9. #49
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by Redress View Post
    Kinda neat comment from the arguments this morning. Lawyer arguing against SSM bans closed by commenting on how many are framing things as who decides, the voters or the court, but instead the question should be "whether the individual can decide who to marry, or whether the government will decide for him".
    Seems that would play right back to Alito's questioning about what the difference between SSM and Polygamy is.
    Worth noting, Democrats: President Trump will have a Pen and a Phone. #Precedent.

  10. #50
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    Re: Crystal Ball Time: SCOTUS and SSM

    Quote Originally Posted by cpwill View Post
    Seems that would play right back to Alito's questioning about what the difference between SSM and Polygamy is.
    To an extent, yes, though the lawyer's answer to Alito's question was very good and still relevant. Essentially she pointed out that it raises a number of very different questions that could result in a very different answer.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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