This week the United States Supreme Court is hearing two cases on the issue of Same Sex Marriage (SSM): Hollingsworth v. Perry, a challenge to California’s Proposition 8, a ballot initiative that reestablished the ban on SSM in that state after the state’s supreme court had ruled that a SSM ban violated the state constitution; and U.S. v. Windsor, a challenge to the section of the Defense of Marriage Act (DOMA), which provides that the federal government will not recognize a SSM for any federal purposes, including tax benefits to spouses, even where the state treats the couple as married.
The cases are particularly interesting in that they provide the Supreme Court a wide range of possible legal outcomes, from a finding that a ban on SSM violates the US constitution, to a holding ducking the question on procedural grounds of standing, to a finding that each of these measures limiting SSM are valid. The arguments are being made in an environment when public opinion seems to be turning in favor of SSM, and several SSM opponents, including prominent Republicans, reconsidering or weakening their opposition.
So, how do you think the Supreme Court will decide these cases, including the vote, the reasons given for the decisions of the Court, and any concurrences and dissents, and which Justices will come out for which positions?
I think that the the Supreme Court won’t go so far as to find prohibiting SSM unconstitutional, but will cautiously come down with split decisions favoring SSM to be adopted on a state-by-state basis.
As to the Perry case, I think that it will be a 6-3 decision that upholds SSM in California, but with a split decision on the legal reason. In Perry, the District Court found that the opponents to SSM could not demonstrate any rational basis for the government to prohibit SSM, so the ban was unconstitutional. The Court of Appeals, on the other hand, found more narrowly that the ballot initiative taking away the right to SSM improperly removed an existing right from a minority group in violation of the 1996 Supreme Court decision in Romer v. Evans. The Court of Appeals decision was narrowly crafted so it would only apply to the unusual situation in California, where the state courts had authorized SSM and many SSMs had been entered into under that decision, but a ballot initiative had blocked any further SSMs.
I think that of the six justices that vote to affirm the Court of Appeals decision upholding SSM in California, Chief Justice Roberts and Justice Kennedy and Ginsburg (in a decision by Kennedy), will opine that the ballot initiative improperly removed an existing right for essentially the reasons given by the Court of Appeals. Three others justices, Justices Breyer, Kagan and Sotomayor (in a decision by Breyer) will write an opinion finding that the District Court’s finding that there was no rational basis for the California ban by ballot initiative should be affirmed.
Justices Scalia will write a full-throated dissent, joined in by Justices Thomas and Alito, based on history and tradition.
As to Windsor, I think it will be a 7-2 decision, again on a split basis. Chief Justice Roberts and Justice Alito (in an opinion by Roberts) will find that section 3 of DOMA, which bars the federal government from extending any federal benefits to state-recognized SSMs, improperly intrudes on an area of law reserved to the states under the Tenth Amendment. Justices Kennedy, Ginsberg, and Sotomayor(in an opinion by Ginsberg) will find that DOMA’s section 3 is sex-based discrimination fails that intermediate scrutiny and is thus unconstitutional. Justices Breyer and Kagan (in an opinion by Breyer) will find that section 3 of DOMA fails rational basis review and is thus unconstitutional.
Scalia will once more angrily dissent, joined by Justice Thomas.
So, what do you think?