# Hoo boy. The Supremes are taking on DOMA and Prop 8. **URL:** \ **Category:** Great Debates\ **Created:** [December 7, 2012, 10:15pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363 "2012-12-07T22:15:27Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 8, 2012, 6:45am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/21 "2012-12-08T06:45:26Z")
> [@John\_Mace](#): > > Contrary to what **YogSosoth** declares, the march towards SSM rights is moving forward, and this decision won’t stop it. More states will continue to liberalize the laws (even if some don’t), and at some point DOMA will be voted down the way DADT was. The way to the future isn’t always through the courts. Uh, what do you mean contrary to what I said? :dubious: ---
**Author:** ![fumster](https://avatars.discourse-cdn.com/v4/letter/f/e9c0ed/32.png) [@fumster](https://boards.straightdope.com/u/fumster)\ **Post date:** [December 8, 2012, 7:45am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/22 "2012-12-08T07:45:52Z")
Let’s say that the Supreme Court decides that states do not need to recognize SSM from other states. Could states that allow SSM then turn around and not recognize any marriages from states that do not allow SSM? ---
**Author:** ![fumster](https://avatars.discourse-cdn.com/v4/letter/f/e9c0ed/32.png) [@fumster](https://boards.straightdope.com/u/fumster)\ **Post date:** [December 8, 2012, 7:47am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/23 "2012-12-08T07:47:53Z")
> [@John\_Mace](#): > > Federal law does not recognize foreign SSM or Polygamous marriages for that matter. Keep in mind that many countries allow Polygamy. In the US the penalty for men who commit bigamy is two wives. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [December 8, 2012, 7:54am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/24 "2012-12-08T07:54:59Z")
> [@John\_Mace](#): > > Yeah, but Susan and Carol would have really fresh, delicious potatoes, so there’s that! What _is_ it about lesbians and potatoes, eh? ---
**Author:** ![Oliveritaly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/oliveritaly/32/15233_2.png) [@Oliveritaly](https://boards.straightdope.com/u/Oliveritaly)\ **Post date:** [December 8, 2012, 8:15am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/25 "2012-12-08T08:15:47Z")
> [@pravnik](#): > > Wow. This is an opportunity for the Court to decide whether they want to issue this generation’s _Plessy v. Ferguson_ or its _Brown v. Board of Education_, and whether they want to be remembered as this generation’s Taney or Warren. Choose wisely, your Honors. Couldn’t agree more … ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [December 8, 2012, 8:56am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/26 "2012-12-08T08:56:39Z")
Based on the rulings in [Lawrence v. Texas](http://en.wikipedia.org/wiki/Lawrence_v._Texas) and [Romer v. Evans](http://en.wikipedia.org/wiki/Romer_v._Evans), and the fact Kennedy wrote the majority opinion in both, I have a hard time believing these won’t be landmark decisions enshrining marriage equality as the law of the land. And I expect Kennedy will again be voting with the majority. Whether Roberts does as well I haven’t a clue. ---
**Author:** ![gracer](https://avatars.discourse-cdn.com/v4/letter/g/8e7dd6/32.png) [@gracer](https://boards.straightdope.com/u/gracer)\ **Post date:** [December 8, 2012, 10:44am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/27 "2012-12-08T10:44:04Z")
I’m not US-ian so I don’t really know how these things work. It sounds from reading this thread that judges “go with” their buddy the other judge. Do they do that? They make important decisions based on what someone else does, or the fact that they are a little annoyed with the way something went last time? Or is that just interpretation? I understand they are only human and make human decisions, but do these things really come into play? I’m asking because I get that impression from this thread. My fingers are crossed for equal rights! ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 8, 2012, 1:24pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/28 "2012-12-08T13:24:22Z")
> [@LawMonkey](#): > > Notwithstanding my handle, I’m not a super-devoted court watcher these days. But Emily Bazelon discussed this on the Slate Political Gabfest, which I listened to this morning. Her breakdown: > > Ginsburg, Breyer, Kagan and Sotomayor will almost certainly be for striking down both DOMA and Prop 8. > > Scalia will, without a doubt, want to let both stand. (Seriously, have you read the way this guy writes when teh ghey comes up?) Thomas will probably go with Scalia. > > Alito doesn’t have much of a record on this type of issue, but safe money would put him with the conservative wing. > > Roberts is perhaps a wild card, as the Obamacare decision suggests that he may be concerned about the perception of the Court by the public as being out of step. He’ll be worth watching at oral argument. > > If Roberts goes with the conservatives, it all comes down to Kennedy, as usual. Kennedy gave us both _Romer v. Evans_ and _Lawrence v. Texas_. I’d feel comfortable if it were just DOMA, but I’m not positive that Prop 8 isn’t a step too far. A couple of observations: Kennedy, I think, has his eye on history, as his career on the Court begins to wind towards its close (health). IMO he stands a good chance of being seen as on a level with Holmes and Black, of Associate Justices whose work was seminal in shaping American jurisprodence. For Kennedy, that place in the history books is twofold: first, having given ‘teeth’ to the Rational Basis test, so that it is no longer the free pass for a legislature to do whatever it lists, but must instead articulate a reasonable nexus to a social good to be advanced or social harm to be avoided by the law in question; and second, amid the increasingly intrusive perusal of governmental investigation, the careful crafting of a well= though fuzzily-defined sphere where there is a reasonable expectation of privacy from governmental micromanagement of individual lives. Society being what it is these days, this has been most obvious in the field of gay rights, with _Romer_ and _Lawrence_ being key decisions. If Kennedy writes one or both of these, it will be the capstone on his legacy on the Court. But I would also like to take a brief historical excursus here. The Court’s modern role as defender of civil rights against legislation dates back primarily to 1937. Then, as now, a bloc of justices appointed by Republican presidents and themselves conservatives were in a position to thwart claims of civil rights as against government powers, with a relatively liberal bloc prepared to honor rights claims – even though a relatively liberal administration had been in office for four years following many years of Republican domination. The so-called “Constitutional Revolution of 1937” came about because one moderate-conservative justice recognized the danger inherent in allying himself at all times with the ‘Four Horsemen’ strong conservatives. Do you recall the name of that justice? His namesake on today’s Court surely does. 🙂 > [@Ethilrist](#): > > Anybody else keep hearing “STOP! In the naaaame of love…” when they see this thread title? I’m envisioning Messrs. Scalia and Thomas breaking into a counterpoint of “You can’t hurry love, no, you just have to wait!” 😃 > [@Dr.Drake](#): > > So in my case, I don’t have a state of residence, but I vote as a Californian because that was my last residence before leaving the US. So when I file federal taxes, would I decide whether I’m married or single based on California’s laws? I think that for purposes of asserting your rights as a U.S. Citizen, your last state of residence within the U.S. remains your legal state-of-residence, that physical residence outside the U.S. with no intent to terminate citizenship has no bearing on the question. But I could be wrong. **Eva Luna**? Can you confirm or correct this? > [@gracer](#): > > I’m not US-ian so I don’t really know how these things work. It sounds from reading this thread that judges “go with” their buddy the other judge. Do they do that? They make important decisions based on what someone else does, or the fact that they are a little annoyed with the way something went last time? Or is that just interpretation? I understand they are only human and make human decisions, but do these things really come into play? I’m asking because I get that impression from this thread. > > My fingers are crossed for equal rights! Rather, it’s a bit of facile grouping for the sake of quick analysis. That is, Kagan and Thomas would each take the positions they do as a result of independent jurisprudential analysis on the basis of their own principles, but it is convenient for someone trying to assess how the Court as a whole will come down on a question to group them with other justices who hold similar positions, in this example, Ginsberg and Scalia. As **Bricker** is fond of pointing out, there have been quite a few cases in which justices normally grouped together as ‘the liberal wing’ or ‘the conservative wing’ have differed between themselves. Including one case in whixh Scalia and Ginsberg joined in a dissent against a majorityy opinion the other seven agreed with. It’s just that such cases are not usually the high-profile cases that make front page news. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [December 8, 2012, 4:25pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/29 "2012-12-08T16:25:14Z")
> [@Polycarp](#): > > The so-called “Constitutional Revolution of 1937” came about because one moderate-conservative justice recognized the danger inherent in allying himself at all times with the ‘Four Horsemen’ strong conservatives. Do you recall the name of that justice? His namesake on today’s Court surely does. 🙂 I assume you are comparing Owen Roberts and John Roberts? I don’t know that there is enough evidence yet to tell if the current Chief Justice thinks that way or not, but I am cautiously optimistic about him. ---
**Author:** ![Napier](https://avatars.discourse-cdn.com/v4/letter/n/ce73a5/32.png) [@Napier](https://boards.straightdope.com/u/Napier)\ **Post date:** [December 8, 2012, 5:24pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/30 "2012-12-08T17:24:31Z")
> [@Dr.Drake](#): > > I know it could force the federal government to recognize SSM for those who married in a state where it was legal, but what about those of us who married abroad? Pardon my ignorance, please – is it a big fix for this problem that you would be able to have another marriage ceremony in a US state? Or is there something I’m oblivious to that means it doesn’t nearly make it OK? ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 8, 2012, 6:27pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/31 "2012-12-08T18:27:55Z")
> [@Napier](#): > > Pardon my ignorance, please – is it a big fix for this problem that you would be able to have another marriage ceremony in a US state? Or is there something I’m oblivious to that means it doesn’t nearly make it OK? Well, I don’t think I should have to get married twice, but even if I were so inclined, would THAT be legal? I was under the impression that if you were married, you could not marry again, even if it is to the same person. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 8, 2012, 7:03pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/32 "2012-12-08T19:03:01Z")
I can’t see the SCOTUS mandating that SSM be legal in the US-- that is, declaring state bans to be unconstitutional. Not yet. I have to wonder how much public support that would get. IOW, how many people support SSM, but don’t want the courts to mandate it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 8, 2012, 7:08pm UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/33 "2012-12-08T19:08:41Z")
Answering my own question, here’s what I found on [PollingReport.com](http://pollingreport.com/civil.htm). Seems like only a minority of people who favor SSM want to leave it up to the states-- a little more than 10%, just guessing at the math. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 9, 2012, 12:28am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/34 "2012-12-09T00:28:52Z")
What’s the significance of them taking on both cases together? Does this mean that they’re bound to decide the same way on both, or can they say “This is acceptable but that isn’t”? ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 9, 2012, 12:37am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/35 "2012-12-09T00:37:22Z")
> [@Polycarp](#): > > But I would also like to take a brief historical excursus here. The Court’s modern role as defender of civil rights against legislation dates back primarily to 1937. Then, as now, a bloc of justices appointed by Republican presidents and themselves conservatives were in a position to thwart claims of civil rights as against government powers, with a relatively liberal bloc prepared to honor rights claims – even though a relatively liberal administration had been in office for four years following many years of Republican domination. The so-called “Constitutional Revolution of 1937” came about because one moderate-conservative justice recognized the danger inherent in allying himself at all times with the ‘Four Horsemen’ strong conservatives. Do you recall the name of that justice? His namesake on today’s Court surely does. 🙂 :dubious: This sounds backward to me. The Switch In Time was the Court’s shift toward upholding federal legislation over claims that it violated constitutional rights (freedom of contract), and it resulted in major expansion of federal regulatory authority in the area at issue. (I’m not saying that that’s necessarily what the current Court will do with DOMA – just that I don’t think the analogy works the way you suggest). ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [December 9, 2012, 2:07am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/36 "2012-12-09T02:07:20Z")
> [@John\_Mace](#): > > I can’t see the SCOTUS mandating that SSM be legal in the US-- that is, declaring state bans to be unconstitutional. Not yet. > > I have to wonder how much public support that would get. IOW, how many people support SSM, but don’t want the courts to mandate it. Public support should be irrelevant though, right? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 9, 2012, 3:01am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/37 "2012-12-09T03:01:24Z")
> [@pravnik](#): > > Wow. This is an opportunity for the Court to decide whether they want to issue this generation’s _Plessy v. Ferguson_ or its _Brown v. Board of Education_, and whether they want to be remembered as this generation’s Taney or Warren. Choose wisely, your Honors. The Court doesn’t have to rule that broadly. On Prop 8, it could simply follow the narrow holding of the 9th circuit that Prop 8 is overturned because it did a “Romer v. Evans” in taking away a “right” that was already established. So California’s ban on SSM is overturned, but it leaves the question of SSM bans in other states for another day. It could also hold that marriage is a state matter, so DOMA insofar as the feds don’t recognize SSM from states that allow it is unconstitutional, but not requiring other states to recognize them is kosher. That would be the middle of the road opinion that would be kind of blah and piss everyone off. However, my Con Law professor who is very liberal thinks that there is no way in hell the Court wants to legalize SSM nationwide and create this generation’s Roe v. Wade and a rallying cry against judicial activism. I think that argument would appeal to Kennedy, who as much as he is in favor of gay rights, wouldn’t want to be remembered as ruling by fiat. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 9, 2012, 3:32am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/38 "2012-12-09T03:32:16Z")
> [@John\_Stamos\_Left\_Ear](#): > > Public support should be irrelevant though, right? If it’s a constitutional matter, no. If not, then yes. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [December 9, 2012, 5:52am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/39 "2012-12-09T05:52:41Z")
> [@Napier](#): > > Pardon my ignorance, please – is it a big fix for this problem that you would be able to have another marriage ceremony in a US state? Or is there something I’m oblivious to that means it doesn’t nearly make it OK? Marriage has traditionally been a matter of state law. Each state sets its own laws on who can get married. So the current situation is some states allow same-sex marriages and some states don’t. What makes this a constitutional issue is the “Full Faith and Credit Clause” in the Constitution which says every state is suppose to recognize the validity of a legal action performed in another state. So if you get married in one state and then move to another state, you don’t have to get remarried in your new home because your original marriage is recognized as valid. The Defense of Marriage Act (aka DOMA) created an exception for gay marriages when it was enacted in 1996. It said that states that do not allow same-sex marriages do not have to recognize the validity of same-sex marriages that were performed in another state. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [December 9, 2012, 8:46am UTC](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363/40 "2012-12-09T08:46:32Z")
> [@jtgain](#): > > It could also hold that marriage is a state matter, so DOMA insofar as the feds don’t recognize SSM from states that allow it is unconstitutional, but not requiring other states to recognize them is kosher. > [@Little\_Nemo](#): > > Marriage has traditionally been a matter of state law. Each state sets its own laws on who can get married. So the current situation is some states allow same-sex marriages and some states don’t. > > What makes this a constitutional issue is the “Full Faith and Credit Clause” in the Constitution which says every state is suppose to recognize the validity of a legal action performed in another state. So if you get married in one state and then move to another state, you don’t have to get remarried in your new home because your original marriage is recognized as valid. > > The Defense of Marriage Act (aka DOMA) created an exception for gay marriages when it was enacted in 1996. It said that states that do not allow same-sex marriages do not have to recognize the validity of same-sex marriages that were performed in another state. In the majority opinion he wrote in Romer v. Evans, Justice Kennedy said this of the state law: > [@](#): > > Its sheer breadth is so discontinuous with the reasons offered for it that **the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.** And he said > [@](#): > > [Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. **The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.** Maybe I’m wrong but the parts I bolded seem to be the key to what bothered Kennedy the most about that law. I think the points raised by **Little Nemo** quoted above are likely to make it difficult for Kennedy to go along with a solution like that proposed by **jtgain**. The crucial part here will be about allowing it to be decided at the state level. If SSM is allowed in some states but not others it is only a matter of time before couples married in one state move to another state where SSM isn’t recognized and what then? Are they now unmarried? Only married in the eyes of the Federal government but not the state they live in? Surely it is easy to see how this solution would quickly become a mess. I can’t imagine how something like that could be viewed as a reasonable solution. A decision that is clearly yay or nay is the only realistic choice. Half measures won’t get us anywhere and I have faith a majority of the court will at least realize that. All in or nothing. [Previous page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=1) [Next page](https://boards.straightdope.com/t/hoo-boy-the-supremes-are-taking-on-doma-and-prop-8/643363.md?page=3)