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Crystal Ball Time: SCOTUS and SSM

How will SCOTUS rule?


  • Total voters
    60

Redress

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So the oral arguments are tomorrow before the Supreme Court on the subject of same sex marriage. The court is looking at two primary questions, whether states can refuse to recognize same sex marriages from other states, and whether states can ban same sex marriage. Good reading on the issues at hand, pretty balanced to my mind: Same-sex marriage: The decisive questions : SCOTUSblog. So how do you think the court will end up ruling?

1: States can ban SSM and not recognize them from other states
2: States can ban SSM but have to recognize them from other states
3: States cannot ban SSM but do not have to recognize them from other states
4: States cannot ban SSM and have to recognize them from other states
5: No ruling, lack of standing
6: Something else

Please be patient while I add poll options.
 
I'd wager they go with your number 2, although 4 is the only other logical option and most logical of the two. Since marriage appears to be an issue within the purview of States but the Federal government has policy and benefits tied to "sanctioned" marriage, it is likely that States will have to recognize marriages sanctioned by other states, similar to recognizing other State's drivers' licenses, etc., but it's a toss up whether they will go all the way to requiring that all States sanction SSM.

I believe the court will be definitive this time around because the constant debate over the issue is damaging to the social fabric of the country.
 
It will pass - option 4 is how I voted.
 
"States can ban SSM and not recognize them from other states" because that is what rightists want and the Court are stooges for the right.
 
Not quite sure I follow. Option 4 would overturn the lower court ruling.

After all this is said and done - states won't be able to ban same sex marriage (and have to recognize them from other states). I believe that's how the SCOTUS will rule.
 
After all this is said and done - states won't be able to ban same sex marriage (and have to recognize them from other states). I believe that's how the SCOTUS will rule.

Thank you for the clarification.
 
I picked 4 because I don't think Chief Justice John Roberts wants the legacy of being anti-gay in his court. I see a possible 6-3 decission.
 
So how do you think the court will end up ruling?

It is starting to look more and more like the Supreme Court will make a decision close to option #4. I do not see how the Supreme Court can ignore the implications of relations recognized on different levels State to State, further there would be an issue of consistency if the so called "rational basis" test is the only consideration. We also have the issue of how many States where SSM bans have been overturned for one reason or another regardless of the State argument (and they have varied.) In our favor for this is at least several State's arguments for SSM bans have been boiled down to "moral hostility to homosexuality," and I expect that to come up before the Supreme Court as well.

Because of the merit for this case it does not seem plausible to me to issue a ruling that one State can ban SSM and then also not recognize a SSM marriage from another State, but at the same time other Constitutional challenges for other subjects have lead us to that exact same scenario.

The challenge here will be how well the argument is crafted for marriage equality with respect to taxation, benefits recognition, right of spouse, handling property, handling adopted kids, medical, etc. If that is handled well enough to show SSM ban States are actively trying to discriminate then option #4 seems the consistent remedy.

This may actually be a 6-3 or even 7-2 ruling, but it is going to be tough and come down to the unified argument.
 
Certainly states won't be able to ban SSM. That's the only rational outcome. Then the only way to get the laws to make sense is to have homosexual marriage protected the same as heterosexual, so states won't be able to pick and choose whose they recognize. What I'm interested to see if what level of constitutional scrutiny laws relating to sexual orientation will warrant.
 
My guess is something along the lines of option 4. Aside from being the right result constitutionally, social mores have changed and with it attitudes towards homosexual relationships and the court, for better or worse is influenced by, and a part of, society.
 
The court will rule like it did in Loving vs. Virginia.
 
I picked 4 because I don't think Chief Justice John Roberts wants the legacy of being anti-gay in his court. I see a possible 6-3 decission.
The only real question is whether it will be a 5-4 or a 6-3 decision. There is no question that the court is going to find that bans violate the Constitution, Justice Kennedy pretty much signaled that in the DOMA case which is what set Scalia off on his vitriolic dissent. Scalia, Thomas and Alito are likely to be the 3 dissenters.
 
Certainly states won't be able to ban SSM. That's the only rational outcome. Then the only way to get the laws to make sense is to have homosexual marriage protected the same as heterosexual, so states won't be able to pick and choose whose they recognize. What I'm interested to see if what level of constitutional scrutiny laws relating to sexual orientation will warrant.

Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.

However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows
 
My guess is something along the lines of option 4. Aside from being the right result constitutionally, social mores have changed and with it attitudes towards homosexual relationships and the court, for better or worse is influenced by, and a part of, society.

We have a governing mechanism for capturing that, when it occurs. It is called "A Legislature".

That being said, I'm fairly pessimistic about it - Option 4 is the most likely. Kennedy has been clear before that States have the right to define marriage for themselves (US v Windsor, ironically):

Justice Kennedy said:
“Regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. . . . The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “protection of offspring, property interests, and the enforcement of marital responsibilities... [and] there is no federal law of domestic relations.”...

Quotes taken from the argument that Kennedy will choose Option #2

....but I think is probably willing to subordinate the Constitutional to the Political here.
 
Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.

However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows

Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.
 
We have a governing mechanism for capturing that, when it occurs. It is called "A Legislature".

That being said, I'm fairly pessimistic about it - Option 4 is the most likely. Kennedy has been clear before that States have the right to define marriage for themselves (US v Windsor, ironically):



Quotes taken from the argument that Kennedy will choose Option #2

....but I think is probably willing to subordinate the Constitutional to the Political here.


In theory. In reality SC justices are people and many, if not all, are going to bring their biases to the table and those are informed by the world they live in. Do you think Loving v Virginia would have been decided the way it was in 1860?
 
Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.

We may just be arguing semantics, but sexual activity between homosexuals is in fact a protected liberty interest under substantive due process. Thus, a law banning such activity must pass strict scrutiny in order for the court to uphold it as unconstitutional. See Lawrence v. Texas

When I meant sexual-orientation, I meant the right to engage in sexual activity between homosexuals. However, you are correct, homosexuals are not currently a protected class.
 
We may just be arguing semantics, but sexual activity between homosexuals is in fact a protected liberty interest under substantive due process. Thus, a law banning such activity must pass strict scrutiny in order for the court to uphold it as unconstitutional. See Lawrence v. Texas

When I meant sexual-orientation, I meant the right to engage in sexual activity between homosexuals. However, you are correct, homosexuals are not currently a protected class.

Sodomy laws are unconstitutional. However, that is pretty irrelevant to the issues before the court. That sodomy laws are unconstitutional does not make orientation a factor is determining a protected class at this time. It is possible that orientation could put some one in a protected class, however currently that is not the case and would probably be done without reference to sodomy laws. Probably a more likely outcome is the court would rule as some of the lower courts have that SSM bans are a form of gender discrimination(ie men can do something women cannot, marry women, and women can do something men cannot, marry women) which would place it under heightened(intermediate) scrutiny. Also possible is that the courts will rule that since marraige is a fundamental right, it would fall under strict scrutiny. Level of review is going to be one of the biggest issues the court has to determine, and will probably take up a significant amount of the hour and a half the court has set aside to review SSM bans(the other hour is looking at the question of whether states have to recognize those married in other states).

Does that clear things up a bit? I have spent a great deal of time over the last 3ish years studying the legal aspects of the case, reading all the rulings and alot of the interpretations of the rulings...plus I am very anal about the details on these things as you may have noticed.
 
The only real question is whether it will be a 5-4 or a 6-3 decision. There is no question that the court is going to find that bans violate the Constitution, Justice Kennedy pretty much signaled that in the DOMA case which is what set Scalia off on his vitriolic dissent. Scalia, Thomas and Alito are likely to be the 3 dissenters.

Sad...to hold such "principles" and (should) know that they will go down in history viewed much like anyone that still supported slavery in the modern era.
 
Clarification: orientation is not a right, it is just a state of being. Currently under the law, orientation does not put one in a protected class.

Sexual orientation is a protected class in some states.

At the federal level, the EEOC has used 'gender discrimination' in legal challenges to support rights for homosexuals successfully in most cases.
 
Sexual orientation is a protected class in some states.

At the federal level, the EEOC has used 'gender discrimination' in legal challenges to support rights for homosexuals successfully in most cases.

That is correct, though neither are particularly relevant to the cases SCOTUS is hearing on SSM.
 
That is correct, though neither are particularly relevant to the cases SCOTUS is hearing on SSM.

Yes it is. The issue can also recognize that in the area of contracts (state-sponsored marriage licenses), it's gender discrimination. One gender is discriminated against.

I dont know if that is one that SCOTUS will use but it has been proposed and is similar to the way that the EEOC has successfully met challenges.
 
Yes it is. The issue can also recognize that in the area of contracts (state-sponsored marriage licenses), it's gender discrimination. One gender is discriminated against.

I dont know if that is one that SCOTUS will use but it has been proposed and is similar to the way that the EEOC has successfully met challenges.

Neither state laws nor EEOC guidelines are used to determine if something is constitutional. Gender discrimination is quite possibly going to be part of the final ruling and will definitely be a part of oral arguments as it has been part of several of the lower court rulings. However, it is each gender being discriminated against, not just one.
 
Given that marriage and sexual-orientation are considered fundamental rights, laws prohibiting same-sex marriage should be held to strict scrutiny. Strict scrutiny generally requires the law to be absolutely necessary and narrowly tailored to fit the need in order to pass judicial scrutiny.

However, if you extensively read enough SCOTUS majority opinions, you come to realize they just bend and twist the Constitution to fit their political goals... So who knows

I agree that strict scrutiny is the most appropriate result, however there is precedent for any level. Laws relating to gender tend to get intermediate scrutiny protection, and the lower court rulings have tended to only address rational basis arguments. All the supreme court would have to do is repeat those argument or simply follow them to leave SSM with mere rational basis protection. If that happens, I expect many states to continue to pass SSM bans for a few years and lots of elected state court judges to find a rational basis, only to have them struck down quite quickly by the circuit courts.

The argument for strict scrutiny is, however, the easiest. All that requires is saying that marriage is marriage, regardless of the genders of the people involved.
 
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