Crystal Ball Time: SCOTUS and SSM

Redress said:

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.

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The bold is pretty much what I was referring to....a possible basis for the decision.

Redress said:

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.

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Equal protection is one way to defend gay marriage. However, I was looking at defending gay marriage through the due process clause. Statutes harming fundamental rights require strict scrutiny review by the courts. Marriage is considered a fundamental right (Lovings v. Virginia), thus any state law banning gay marriage would need to pass strict scrutiny so as not to violate substantive due process. Gay rights have already been protected under the due process clause (Lawrence v. Texas - sodomy), thus a precedent has already been set and the court may consider that in using the due process clause to defend gay marriage. My main point is that SCOTUS may look to at substantive due process to protect gay rights rather than trying to make gays a protected class.

I doubt the court goes with gender discrimination. The statutes do not discriminate against a particular gender, and it is pretty clear the intent of the statutes is to discriminate against gays (regardless of sex). The relationship just seems a bit tenuous, and I believe most state supreme courts have not upheld gay marriage based on that argument.

However, SCOTUS could say that gay marriage laws do not meet rational basis as a result of animus. Justice Kennedy (often the swing vote) has used animus (Romer v. Evans) as a way of saying a statute does not meet rational basis.

Certainly, due process, equal protection, and animus will all be argued. In my initial post, it just struck me as odd that gay rights (sodomy) have been protected under the due process clause, marriage is considered a fundamental right under the due process clause, yet there are laws on the books preventing gays to marry. That was all I meant.

Redress said:

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.

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This is exactly why gender discrimination does not make sense. State laws against gay marriage do not discriminate based on gender. There is no history of states preventing one gender from same-sex marriage. If state laws said lesbians could not get married, then the argument would be a good one. However, banning all gay marriages does not show an intent to discriminate against men or women differently.

Substantive Due Process is the best argument that can be made. It will not be the only argument, but should be the main argument made in support of gay marriage.

Helvidius said:

I doubt the court goes with gender discrimination. The statutes do not discriminate against a particular gender, and it is pretty clear the intent of the statutes is to discriminate against gays (regardless of sex). The relationship just seems a bit tenuous, and I believe most state supreme courts have not upheld gay marriage based on that argument.

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I'm more than happy for the court to find a more solid basis however the substance of the gender discrimination argument I referred to was based on gender discrimination in contracts, such as state-issued marriage licenses. It could be proven that one gender was being discriminated against in such contracts.

It's my hope that the court uses a much more substantive Constitutional and humane and enlightened argument.

Equal protection under the law seems the most likely and most appropriate overall tho...how can you deny the federal benefits and privileges of marriage to same sex couples? What could that be based on that was Constitutional?

Lursa said:

I'm more than happy for the court to find a more solid basis however the substance of the gender discrimination argument I referred to was based on gender discrimination in contracts, such as state-issued marriage licenses. It could be proven that one gender was being discriminated against in such contracts.

It's my hope that the court uses a much more substantive Constitutional and humane and enlightened argument.

Equal protection under the law seems the most likely and most appropriate overall tho...how can you deny the federal benefits and privileges of marriage to same sex couples? What could that be based on that was Constitutional?

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Marriage is a fundamental right under the due process clause. Statutes interfering with fundamental rights require strict scrutiny review.

How would you prove a gender was being discriminated against? The law doesn't target a single gender; it targets men and women equally. You would have to prove the law, on its face, discriminates against a particular gender or, if the law is neutral, the purpose of the law was to discriminate against a particular gender. I have never seen any law against gay marriage where this applies. Thus, I would argue the law violates due process or fails to meet rational basis review due to animus (animosity/hatred toward a particular group).

Helvidius said:

Marriage is a fundamental right under the due process clause. Statutes interfering with fundamental rights require strict scrutiny review.

How would you prove a gender was being discriminated against? The law doesn't target a single gender; it targets men and women equally. You would have to prove the law, on its face, discriminates against a particular gender or, if the law is neutral, the purpose of the law was to discriminate against a particular gender. I have never seen any law against gay marriage where this applies. Thus, I would argue the law violates due process or fails to meet rational basis review due to animus (animosity/hatred toward a particular group).

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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.

Lursa said:

Equal protection under the law seems the most likely and most appropriate overall tho...

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Er, so, yeah.

Deleted...duplicate due to server maint.

Lursa said:

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.

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That's an excellent point. In the end, we all know ssm being recognize is inevitable. It's becoming more obvious that a group's beliefs on the matter are largely irrelevant to whether it should be legal. I'd hate to be on the side that was holding up signs with hateful messages. I mean, in the end, historians won't see a difference between this:





And this:





The issue now is for the people opposed to SSM to decide how they want to be viewed. Will they continue down this path and remain the proverbial bad guys in the history of equality? Or will they simply acknowledge that gay people having their marriage sanctioned and recognized by the state changes nothing in their personal lives?

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There is actually a 5th option.

They could decide for and against the states and say:

SCOTUS will vote in accordance with option #4.

They will however, use the verbiage 'Civil Union' in order to placate the bigots.

Helvidius said:

This is exactly why gender discrimination does not make sense. State laws against gay marriage do not discriminate based on gender. There is no history of states preventing one gender from same-sex marriage. If state laws said lesbians could not get married, then the argument would be a good one. However, banning all gay marriages does not show an intent to discriminate against men or women differently.

Substantive Due Process is the best argument that can be made. It will not be the only argument, but should be the main argument made in support of gay marriage.

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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.

d0gbreath said:

SCOTUS will vote in accordance with option #4.

They will however, use the verbiage 'Civil Union' in order to placate the bigots.

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They have absolutely no place in changing the "verbiage" here and Civil Unions are a different sort of legal relationship than marriage, one not part of any constitutional question they are addressing.

roguenuke said:

They have absolutely no place in changing the "verbiage" here and Civil Unions are a different sort of legal relationship than marriage, one not part of any constitutional question they are addressing.

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What if the civil unions were in fact legally identical to marriage?

d0gbreath said:

What if the civil unions were in fact legally identical to marriage?

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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.

d0gbreath said:

What if the civil unions were in fact legally identical to marriage?

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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.


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roguenuke said:

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.

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That was a good explanation. Thanks for that.

WorldWatcher said:

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.


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Another good explanation. I didn't know about civil unions. Now I do.

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".

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.

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roguenuke said:

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.

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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.

Lursa said:

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.

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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.

Helvidius said:

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.

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Interesting. No one has explained that like that before and the claim wasnt investigated in depth, obviously.

Thanks.

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

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Which would be Option #2, which I think is the best actual option here.

Redress said:

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".

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Seems that would play right back to Alito's questioning about what the difference between SSM and Polygamy is.

cpwill said:

Seems that would play right back to Alito's questioning about what the difference between SSM and Polygamy is.

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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.