Predict how the Supreme Court will Decide the Same Sex Marriage Cases

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?

6-3, SSM becomes legal in all 50 states. Roberts is well aware that this is one of the defining civil rights questions in American history, and he’d prefer to be remembered by future generations as an Earl Warren rather than as a Roger Taney.


Pretty much this. The sea change in public opinion has been pretty substantial and evident, and Roberts has a sense of history.

Don’t forget that we’ll be treated to another of the Famous Patented Justice Scalia’s Slippery Slopes, wherein he will compare homosexuality to pedophilia, necrophilia, murder, arson, and kicking puppies.

I’m hoping for Roberts and Kennedy (at least) to swing to the left on these cases. I’m also hoping to see Nino lose his fascist shit, bigtime. If the rant ends with the men in white coats giving him a huggy jacket and carting him off to St. Elizabeth’s, I think I’ll actually throw a party.

Aside: Rachel Maddow attended the Supreme Court in session recently and characterized Scalia (not surprisingly but astutely) as a troll.

I can see both Roberts and Kennedy voting for SSM. Kagan, Breyer, Sotomayor and Ginsburg probably will as well. I can’t see Alito, Scalia, or Thomas voting in favor of SSM whatever the reasoning.

I see it 6-3 for both cases, mainly based on Robert’s work in* Romer v Evans* and Kennedy’s work in Romer and Lawrence v Texas.

I see a possible finding that restrictions on SSM are unconstitutional by a majority, the Repubican appointees chiming in on strictly political grounds … because if SSM gets constitutional protection, it’s no longer an issue and the Dems will lose the overwhelming advantage they had in the gay vote, particularly the RICH gay vote. I have read that a lot of conservative-but-gay purses have been closed due to the Republican stand on SSM, and there’s nothing a Repubican pol loves more than money.

Sounds kinda cynical, but I have found that no one ever got proved wrong by overestimating the corruption of the Republican Party.

I don’t think that follows, necessarily. Did African-Americans flock to the Republican Party after Loving (actually, I guess considering the time period, I should ask if they flocked to the Democrats)? The GOP’s base is still going to be homophobic. Just because we’re not depending on the Democrats to work for marriage equality doesn’t mean all our problems with the GOP dissolve like sugar in the rain.

This is my forecast as well. Scalia’s bizarre rhetoric (for a judge it is bizarre) on issues in public is alienating his fellow conservatives. His public statements that gay marriage is immoral is way out of line. Then he took the position he did that the Voting Rights Act is an unconstitutional racial preference, cooler heads will want to distance themselves. Alito and Thomas may even abandon him on that. Heck, I can see Scalia abandoning his own troll statements on that.

6-3 and 5-4. I think Kennedy will favor SSM both times but that Roberts will favor the progressive view in one case and the conservative view in the other. I don’t know which way Roberts will split but my guess is he’ll be progressive on DOMA and conservative on Prop 8.

Scalia will say something to promote internalized oppression and make future generations despise Republicans.

Thomas will think something to promote internalized oppression and make future generations despise Republicans. Or not. Who knows?

DOMA will be overturned, but they will not rule broadly on SSM being constitutionally required by all 50 states.

I don’t know what the numbers will be, but I’ll guess 5-4 or 6-3 against DOMA and the same for the ruling against SSM. They may rule that there is no standing in the CA instance, and thus prop 8 remains overturned, but that will be CA only.

Just to go for the long shot, I think Thomas will somehow support SSM in a concurring statement.

This is based on his comments from Lawrence about how he would have repealed the law if he were a legislator.

But how did he vote, as a SCOTUS justice, in Lawrence?

Dissent, but with his own spin (calling it a silly law, but focused on issues of jurisprudence). That is why I am going with the long shot that he will find his own way to support SSM. If he does not, then he will again file his own dissent instead of being with Alito or Scalia.

I agree with the other posters about Kennedy and Roberts.

5-4 DOMA overturned. 6-3 for letting the ruling against Prop 8 stand for obscure procedural reasons.

Scalia will say at least three things that will sound like they come from a right wing shock jock during oral arguments.

Do you agree with me about not extending SSM to all 50 states?

I agree with Mace.

I think they’ll overturn DOMA but don’t think they’ll require all states to adopt SSM.

I predict 6-3 as well, and Scalia resigns in disgust. And then Alito resigns because he mistakenly believes that Scalito is a single, indivisible entity. And then a little known provision is unearthed stating that supreme court justices must demonstrate that they can maintain six hours of consciousness in a row and Thomas is forced to resign as well.

OK, that’s maybe more of a pipe dream than a prediction.

Yes. Should’ve been more clear, that’s why I think they’ll find as obscure a reason as possible to preserve the Prop 8 ruling, so it doesn’t end up forcing SSM in other states.