So, Oregon has had a Federal Judgement overturning the SSM ban - I think that makes 18 + DC. What’s the tipping point for this to definitely go to the Supreme Court?
I realise someone is going to have to bring a case and all that, but obviously this will be more likely with some critical mass - is it possible to happen during Obama’s term? Hillary’s?
I think this will happen before the 2016 election.
It seems to take at least three to four years for these things to get through the appeals process in the lower courts. It took three years for the ACA to get a ruling, and five for Prop 8. I’d be pretty surprised if the current round of lower court SSM decisions get the the Supreme Court before the end of 2016.
According to Freedom to Marry:
Since that was written, the 4th and 10th circuit courts of appeal have heard oral argument on SSM cases.
No one knows for sure, of course. There is a school of thought that thinks that if none of the courts of appeals rejects the challenges, then the Supreme Court might not need to act. That seems unlikely.
My own prediction: It takes four justices to vote to take a case. That probably means four justices on either side of Kennedy who think he will go their way. With all the momentum right now and Kennedy being famously sensitive to public opinion, it’s hard to see the conservative wing voting to take one of the cases. So that leaves whether the liberals will vote to take one, which is a question of whether the odds go up or down with time, and also whether there are other cases they might want Kennedy’s vote on now. I think the deciding factor may well be that there’s a slightly greater chance of losing Ginsburg than anyone else on the Court, and so the liberals will probably press their luck and vote for cert.
That means that Supreme Court would probably take the first or second case to be finalized in the Court of Appeals. IIRC, the Fourth and Tenth Circuits are nearly there, so that could mean the case gets heard in the Obama administration.
oh.
Never mind!
I would have said The Supremes, but then someone would drag Diana Ross into this…
I don’t see it happening until at least three or four appellate circuits have weighed in.
As long as the DOMA-case-guided rulings are all pro-equal-rights, as they have been so far, I would expect this Court to simply let that process continue until the whole country is covered. The lower appeals courts have been doing what they’re there for, right?
All but one of the relevant rulings have been at the trial level. The appeals courts haven’t been doing much of anything yet.
An increasing number of the relevant trial rulings aren’t even being appealed, and are therefore settled law already.
The Supremes can’t relish the prospect of reviewing this subject, especially not because it’s their own fault it isn’t settled everywhere yet.
As more and more lower court decisions come down on the side of SSM I think even the liberal wing will be reluctant to vote for cert.
Justice Ginsburg has publicly noted that she felt there was a problem with the ruling in Roe v Wade. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”
Given that the momentum is clearly on the side of SSM, Ginsburg may be reluctant to bring the issue before the court unless forced to do so by conflicting appeals court rulings.
There is NO tipping point, a Petition for Certiorari can be filed even if 1 state bans same sex marriage and a Court of Appeals affirms or denies. To have certiorari GRANTED is another matter.
I checked, when Loving v. Virginia was initiated there were 17 states that outlawed interracial marriage.
SC Rule 10, though not inclusive, gives a few reasons why a Petition would be granted.
Rule 10. Considerations Governing Review on Certiorari
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
I’m (passing) aware of the legalities of it. That wasn’t really my question - Info like that 17 state figure for Loving is the kind of thing I’m after. I mostly want to know from Dopers what their opinions are, of the feeling on the ground, as it were, as well as any ideas on the inclination of the current Supreme Court.
Which I’ve gotten quite a lot of info on, so thanks, everyone.
I’m not saying I didn’t appreciate the rest of your post, BTW, just that it’s not a legal, as much as a cultural, perspective I’m after.
Well, we’re at 26 states representing over 60% of the population where it’s either fully legal or there is a ruling that is currently stayed. To me, that says it’s time.
I think that is the issue with Kennedy as well (or others). Roe v. Wade put a black mark on the Court with the accusations of judicial activism, and I don’t think that anyone wants a repeat performance of that type of thing.
With the tide turning in favor of SSM, it would be better for everyone (long term) if SSM comes to be recognized through the ballot box, and then in 2035 the Supreme Court strikes down the laws in the remaining 5-10 states that still prohibit it.
If they do the Roe route and force it on all 50 states in the near future, it will forever be tarred with the accusation that it was imposed on the public against their will and against the democratic process. Money will flow into social conservative coffers and new litmus tests for Justices will be part of every confirmation process.
My guess is that Kennedy will try to push this off until he retires. He’s probably tired of being known as the “kingmaker” in this debate and doesn’t want to go down in history as the one who decided it one way or the other.
With the *Windsor *decision, isn’t all that supposed negative stuff about the Court’s public standing already in place? Is it really happening that way? Did it happen that way with Brown? Please note the rapidly growing popular acceptance of SSM.
What legislatures do is irrelevant if the stream of judicial rulings about constitutionality continue, and the judicial process is well along almost everywhere already.
Yes, no doubt Kennedy doesn’t want to revisit it, but that is probably only because he doesn’t want to have to clean up the mess he himself left with his refusal to call sexuality a protected class even though his *Windsor *opinion follows from that assumption. He’s left it to lower courts to take care of that loose end for him, and no doubt is happy to leave it at that.
I agree that Kennedy should have just done what he did anyways and decreed that sexual orientation is a protected class. It would have saved almost 20 years of bad law. These refusals to stay controversial rulings have also made bad law.
With regards to Brown, yes it certainly did. Although desegregation is widely accepted now, it damned near started a second civil war in the 1960s. It was ultimately the right thing to do and probably couldn’t have been done any other way. There was no generational move towards desegregation in the south, and Brown was merely a cleanup for 100 years of bad law starting with the Civil Rights Cases and Plessy.
Clearly we disagree that sexual orientation is in the same category, but I think that society would benefit from democratic acceptance of SSM. Last night’s episode of Modern Family will do more for SSM than any court ruling could do. I accept that my side is losing and history will likely put me in the same class as George Wallace.
But wouldn’t it shut George up if the Alabama Legislature had desegregated the schools instead of the Supreme Court? Court action was necessary in that case, but in the case of SSM, it’s just a matter of time until my generation dies off.
