# Predict how the Supreme Court will Decide the Same Sex Marriage Cases **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2013, 6:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936 "2013-03-25T18:12:45Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![LawMonkey](https://avatars.discourse-cdn.com/v4/letter/l/d6d6ee/32.png) [@LawMonkey](https://boards.straightdope.com/u/LawMonkey)\ **Post date:** [March 28, 2013, 2:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/221 "2013-03-28T14:59:17Z")
> [@Gyrate](#): > > While I agree that Scalia is a partisan dick of the highest order, he at least seems to have the requisite level of knowledge and ability required to be an SC Justice, and even asking dickish questions can serve the wider interest of the court. I don’t know how anyone could call him the “worst justice in the history of the court” while Clarence “Silent Clare” Thomas is sitting _right there_. Read Thomas’s opinions (of which there are rather few, I fear), particularly on affirmative action. They are passionate, well-reasoned, and intelligent. I know it’s fun to tease him for asking few questions, but cases are primarily fought and won/lost in the briefs. If he doesn’t think it’s worth asking questions, I can respect that. I’ve quite a bit more respect for him than Scalia. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 28, 2013, 3:19pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/222 "2013-03-28T15:19:35Z")
> [@LawMonkey](#): > > Read Thomas’s opinions (of which there are rather few, I fear), particularly on affirmative action. They are passionate, well-reasoned, and intelligent. Thomas is good at knowing his opinion and writing about that. Critical thinking, intellectual rigor, defending his legal opinions, and countering arguments from those who disagree with him? Not so much. In my opinion, he has very little interest in actually testing his long held conclusions, and even less interest in any jurisprudence that shows he is wrong. He’s more than willing to dismiss decades of Supreme Court jurisprudence in favor for his own brand of originalism, one that may not be as historically accurate as he claims. When I add in his apparent conflicts of interest, problems with disclosure of income, and his blatant misrepresentations of his jurisprudence at his confirmation hearings, I find myself entirely underwhelmed by him. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [March 28, 2013, 3:20pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/223 "2013-03-28T15:20:40Z")
> [@LawMonkey](#): > > Read Thomas’s opinions (of which there are rather few, I fear), particularly on affirmative action. They are passionate, well-reasoned, and intelligent. I know it’s fun to tease him for asking few questions, but cases are primarily fought and won/lost in the briefs. If he doesn’t think it’s worth asking questions, I can respect that. I’ve quite a bit more respect for him than Scalia. Fair enough - I haven’t read his briefs. But “few questions” is an understatement when he’s uttered four words in seven years. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 28, 2013, 3:29pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/224 "2013-03-28T15:29:08Z")
> [@The\_Second\_Stone](#): > > He [Scalia] is the worst justice in the history of the court, including McReynolds. Considering that Roger Taney wrote the opinon on [Dred Scott v. Sandford](http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford), and concurred on [Prigg vs. Pennsylvania](http://en.wikipedia.org/wiki/Prigg_v._Pennsylvania), two of the five or so worst decisions in the court’s history, it’s hard to consider any other justice to be worse than Taney. ---
**Author:** ![kneegrow](https://avatars.discourse-cdn.com/v4/letter/k/3d9bf3/32.png) [@kneegrow](https://boards.straightdope.com/u/kneegrow)\ **Post date:** [March 28, 2013, 3:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/225 "2013-03-28T15:43:13Z")
> [@doorhinge](#): > > Hahahaha. Supreme Court Justices are “trolling”. That’s a good one. On a serious note, for all you “know”, after becoming familiar with all of the previous court documents, the amicus curiae, the last two days of questioning, and the close door debate(s) with the other Justices, Scalia may rule in your favor. You shouldn’t give up so quickly. Wait, are you implying that Scalia, because he is such a high and mighty justice won’t submit to behaviour that’s akin to trolling? What kind of crazy notion is that? After all, the man a conservative, so deliberately going out of their way, JUST TO MAKE other peoples lives more difficult is in their DNA To imply that he can’t be petty and immature to the point that really hurts and/or kills other people is naive at best and viciously trolling itself, at worst. ---
**Author:** ![kneegrow](https://avatars.discourse-cdn.com/v4/letter/k/3d9bf3/32.png) [@kneegrow](https://boards.straightdope.com/u/kneegrow)\ **Post date:** [March 28, 2013, 3:45pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/226 "2013-03-28T15:45:35Z")
> [@Gyrate](#): > > In the first version, the reason is only valid if the detriment is shown to happen. In the second, the reason is considered valid unless the detriment is shown NOT to happen. It’s a substantial shift of the burden of proof. i will accept that that is your way of reading that, but I don’t see it, which yes, might be just me. Why does the burden of proof shift? tbc, i fully support gay marriage ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 28, 2013, 3:45pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/227 "2013-03-28T15:45:40Z")
I’m getting sick of talking about Scalia, but I can’t resist adding this: Scalia brought up the fitness of same-sex couples to be parents. It wasn’t an argument either side was making. If a Justice were to offer up a statement like “I take no stance on whether black people are unfit to be parents, but they might be,” I would call that Justice a racist. So what does it make Scalia when he says (effectively) “I’m not saying gays are unfit to be parents, but they might be”? ---
**Author:** ![kneegrow](https://avatars.discourse-cdn.com/v4/letter/k/3d9bf3/32.png) [@kneegrow](https://boards.straightdope.com/u/kneegrow)\ **Post date:** [March 28, 2013, 3:49pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/228 "2013-03-28T15:49:40Z")
> [@Gyrate](#): > > While I agree that Scalia is a partisan dick of the highest order, he at least seems to have the requisite level of knowledge and ability required to be an SC Justice, and even asking dickish questions can serve the wider interest of the court. I don’t know how anyone could call him the “worst justice in the history of the court” while Clarence “Silent Clare” Thomas is sitting _right there_. yeah, a huge toss up which one is worst. In my eyes they are both fascists, because they both wanna give people MORE rights based on who they are, instead of their actions. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [March 28, 2013, 3:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/229 "2013-03-28T15:53:43Z")
Nobody should be under the illusion that any justice anywhere is cold calculating, impersonal justice machine. They are all influenced and guided by their personal beliefs and biases, to some degree. Some are better at limiting their influence and some are better at hiding the influence. And some like Scalia are better at neither. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 28, 2013, 3:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/230 "2013-03-28T15:56:23Z")
> [@Gyrate](#): > > While I agree that Scalia is a partisan dick of the highest order, he at least seems to have the requisite level of knowledge and ability required to be an SC Justice, and even asking dickish questions can serve the wider interest of the court. I don’t know how anyone could call him the “worst justice in the history of the court” while Clarence “Silent Clare” Thomas is sitting _right there_. These two public hearings are for the purpose of “hearing” the final arguments of the lawyers representing their respective clients. The Justices can ask questions if they chose to do so. Or not. There is no requirement that Supreme Court Justices ask any questions during this part of the judicial proceedure. None. Thomas has access to all of the legal documents pertaining to this case and has attended the closed door sessions with his fellow Justices to discuss the facts of this case. He will also attend any future closed door sessions to discuss this case and will personally research, or have his law cleark(s) research, any new questions/issues that were brought forward in these public hearings. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [March 28, 2013, 3:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/231 "2013-03-28T15:59:19Z")
> [@doorhinge](#): > > These two public hearings are for the purpose of “hearing” the final arguments of the lawyers representing their respective clients. The Justices can ask questions if they chose to do so. Or not. > > There is no requirement that Supreme Court Justices ask any questions during this part of the judicial proceedure. None. Thomas has access to all of the legal documents pertaining to this case and has attended the closed door sessions with his fellow Justices to discuss the facts of this case. He will also attend any future closed door sessions to discuss this case and will personally research, or have his law cleark(s) research, any new questions/issues that were brought forward in these public hearings. I personally have no problem with Thomas not asking any questions as matter of what is required of him, to be honest. But you you gotta admit he is almost religious about it. It is pretty remarkable that he has found almost no reason to seek clarification on any point over this time period. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 28, 2013, 4:16pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/232 "2013-03-28T16:16:26Z")
> [@tim314](#): > > I’m getting sick of talking about Scalia, but I can’t resist adding this: > > Scalia brought up the fitness of same-sex couples to be parents. It wasn’t an argument either side was making. > > If a Justice were to offer up a statement like “I take no stance on whether black people are unfit to be parents, but they might be,” I would call that Justice a racist. > > **So what does it make Scalia** when he says (effectively) “I’m not saying gays are unfit to be parents, but they might be”? That makes him a Supreme Court Justice who had already made it clear that he had taken no position on a particular issue but wanted to hear Cooper’s response to the questioning being presented by Kagen and himself. There is a limited amount of time allowed to hear this final public hearing. I’m sure the lawyers would prefer to argue their case without being constantly interrupted but it is what it is. The Supremes allow the lawyers a limited amount of time to present their case and the Supremes don’t allow much pontification. _Stick to the point, Mr/Ms Lawyer. We’ve got a lot of questions that need answering and you’re wasting time talking about what you’ve previously submitted to the court_. Since no “study” had been entered into evidence that discussed the fitness of parents, Scalia provided both sides of the argument (ie they may or may not be fit). The question was phrased to elicit a relevent response from Cooper. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 28, 2013, 4:37pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/233 "2013-03-28T16:37:11Z")
> [@Gangster\_Octopus](#): > > I personally have no problem with Thomas not asking any questions as matter of what is required of him, to be honest. But you you gotta admit he is almost religious about it. It is pretty remarkable that he has found almost no reason to seek clarification on any point over this time period. Thomas is Thomas. I can’t explain his personal reasons for not asking questions. The lawyers have already presented their case IN WRITING. The original case files are available. The appeal(s) are available. The related case research is available. He has discussed this case with his fellow Justices and will continue to discuss it - with his fellow Justices. Thomas only has to read what has been written and submitted in order to make his decision. Each lawyer is only being given a relatively few more minutes to discuss their clients position. If you had just read War and Peace, how many question would you have for Tolstoy about the plot or characters? Take all the time you want but Tolstoy goes back to being dead in 15 minutes and there are 7 others who will be asking question, on a senority basis, also. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 28, 2013, 4:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/234 "2013-03-28T16:53:02Z")
> [@The\_Second\_Stone](#): > > To expand a little bit on the part of “maybe he will rule in your favor”, > > **I don’t have a side in the case** , haven’t studied constitutional law for 25 years. > > **I’m in favor of gay marriage, and voted against Prop 8**. > > **I’d like to see California put the issue on the ballot again** , but I can see the point of “you can’t take away a right once granted.” > > …Back in the 90s **I was against gay marriage**. But “eww, I’m an ignorant bigot” isn’t a logical reason, nor does it harm anyone what other people do with their lives in a marriage. **So I changed my mind**. Don’t look behind you but you do have a side in this case. At least according to what you’ve written. You don’t like Scalia. That’s fine. Regardless of how Scalia phrased the questions he asked in court, I believe Scalia was trying to better understand the case AS IT’S BEING PRESENTED to the court. After watching all of Tuesday’s hearing and some of Wednesday’s hearing, I have no idea how Scalia will rule. He may write the majority opinion in favor of undoing Prop 8 or agree with the majority opinion that Windsor isn’t entitled to a refund of her taxes. idk. Personally, I find the process and legal arguments more interesting than the subject matter. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 28, 2013, 4:54pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/235 "2013-03-28T16:54:19Z")
> [@Human\_Action](#): > > Considering that Roger Taney wrote the opinon on [Dred Scott v. Sandford](http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford), and concurred on [Prigg vs. Pennsylvania](http://en.wikipedia.org/wiki/Prigg_v._Pennsylvania), two of the five or so worst decisions in the court’s history, it’s hard to consider any other justice to be worse than Taney. Every justice has a boneheaded opinion here and there. Even Oliver Wendell Holmes, arguably our greatest jurist, had his Waterloos: Federal Baseball Club v. National League, 259 U.S. 200 (1922) and Buck v. Bell, 274 U.S. 200 (1927). ---
**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:** [March 28, 2013, 4:54pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/236 "2013-03-28T16:54:35Z")
> [@tim314](#): > > I’m getting sick of talking about Scalia, but I can’t resist adding this: > > Scalia brought up the fitness of same-sex couples to be parents. It wasn’t an argument either side was making. > > If a Justice were to offer up a statement like “I take no stance on whether black people are unfit to be parents, but they might be,” I would call that Justice a racist. > > So what does it make Scalia when he says (effectively) “I’m not saying gays are unfit to be parents, but they might be”? If the case is being analyzed under a rational basis test, then that’s perfectly appropriate. Don’t put too much emphasis on the “rational” in “rational basis”. It really only means “related to” not “logically and scientifically correct”. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 28, 2013, 5:05pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/237 "2013-03-28T17:05:05Z")
Sorry, I couldn’t resist. **doorhinge** , let’s at least take it to [another thread](http://boards.straightdope.com/sdmb/showthread.php?p=16141415). ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 28, 2013, 5:08pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/238 "2013-03-28T17:08:15Z")
> [@John\_Mace](#): > > If the case is being analyzed under a rational basis test, then that’s perfectly appropriate. Don’t put too much emphasis on the “rational” in “rational basis”. It really only means “related to” not “logically and scientifically correct”. The thing is, that can’t be the rational basis of the California law, since gay couples can adopt in California regardless. Prop 8 doesn’t affect that. I read it more as Scalia opining on what the consequences _might_ be in other states, if the court reaches a broad pro-SSM decision. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 28, 2013, 5:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/239 "2013-03-28T17:12:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Every justice has a boneheaded opinion here and there. Even Oliver Wendell Holmes, arguably our greatest jurist, had his Waterloos: Federal Baseball Club v. National League, 259 U.S. 200 (1922) and Buck v. Bell, 274 U.S. 200 (1927). Oh, sure. I just think it’s a stronger basis for evaluating a justice than his personal conduct, such as public appearances. Taney’s opinion on _Dred Scott_, in addition to being boneheaded, was supremely evil (which, fair enough, _Buck v. Bell_ is too). Because I hold Taney in contempt, I’ll also blame him for _Prigg_ even though he didn’t write the opinion. In short, Scalia’s name isn’t attached to any opinion nearly so horrible, so it seems strange to consider him the worst justice in the history of the court. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [March 28, 2013, 5:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/240 "2013-03-28T17:12:58Z")
> [@tim314](#): > > The thing is, that can’t be the rational basis of the California law, since gay couples can adopt in California regardless. Prop 8 doesn’t affect that. I read it more as Scalia opining on what the consequences _might_ be in other states, if the court reaches a broad pro-SSM decision. Even there though, if the court legalized SSM in every state, it doesn’t follow that gay adoption would also be legalized. There are plenty of hetero couples that can’t adopt, if there was really a reason to think that adoption by a gay couple was harmful to children, they wouldn’t be able to adopt either. Being married doesn’t mean you automatically can adopt a kid. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=11) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=13)