# 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:** 13
**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, 5:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/241 "2013-03-28T17:14:06Z")
Also, Scalia didn’t just say “The lawmakers in California might have _believed_ same-sex couples are harmful to children”, he actually says that it _might be true_, emphasizing that more research is needed to know for sure. You have a fair point that “what is scientifically true” is not really important to rational basis (at least rational basis without bite), but I nevertheless have a problem with Scalia promoting this notion that gays _might_ be unfit parents, even if it ultimately won’t have any bearing on the Court’s decision. ---
**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, 5:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/242 "2013-03-28T17:43:00Z")
> [@tim314](#): > > Sorry, I couldn’t resist. **doorhinge** , let’s at least take it to [another thread](http://boards.straightdope.com/sdmb/showthread.php?p=16141415). Why should your be sorry? It was suggested to you that you shouldn’t debate in the debate forum. Did that request make ANY sense? I notice in your “other thread” that you take no position on any of the items you mention. I happen to agree with your “no position” position. Since I don’t have a position either, there is really nothing to discuss over there. ---
**Author:** ![Pashnish\_Ewing](https://avatars.discourse-cdn.com/v4/letter/p/8797f3/32.png) [@Pashnish\_Ewing](https://boards.straightdope.com/u/Pashnish_Ewing)\ **Post date:** [March 28, 2013, 6:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/243 "2013-03-28T18:24:03Z")
> [@Gyrate](#): > > Fair enough - I haven’t read his briefs. But “few questions” is an understatement when he’s uttered four words in seven years. You can always tell a Milford man. ---
**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, 6:31pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/244 "2013-03-28T18:31:09Z")
> [@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. So? The court can rule narrowly or broadly or not rule at all due to a technicality. Makes sense that questions might span all possibilities. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 28, 2013, 6:34pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/245 "2013-03-28T18:34:21Z")
> [@Pashnish\_Ewing](#): > > You can always tell a Milford man. But you can’t tell him much. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [March 28, 2013, 7:08pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/246 "2013-03-28T19:08:24Z")
> [@Pashnish\_Ewing](#): > > You can always tell a Milford man. > [@ElvisL1ves](#): > > But you can’t tell him much. 😕 Why not? Is he very likely to interrupt you? ---
**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, 7:16pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/247 "2013-03-28T19:16:28Z")
> [@doorhinge](#): > > Why should your be sorry? It was suggested to you that you shouldn’t debate in the debate forum. Did that request make ANY sense? > > I notice in your “other thread” that you take no position on any of the items you mention. I happen to agree with your “no position” position. Since I don’t have a position either, there is really nothing to discuss over there. Well, kudos on being consistent, I guess. ---
**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, 7:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/248 "2013-03-28T19:24:02Z")
> [@John\_Mace](#): > > So? The court can rule narrowly or broadly or not rule at all due to a technicality. Makes sense that questions might span all possibilities. Putting aside my feelings about Scalia’s argument, I’d like to ask about rational basis here. If a California law had no rational basis in California, but a similar law might have had a rational basis somewhere else where circumstances are different, that can’t really justify upholding the California law, can it? Justice Ginsburg’s reply to Scalia at least seemed to suggest she felt the question was irrelevant given the state of same-sex adoptions in California. ---
**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, 7:26pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/249 "2013-03-28T19:26:21Z")
> [@tim314](#): > > Putting aside my feelings about Scalia’s argument, I’d like to ask about rational basis here. > > If a California law had no rational basis in California, but a similar law might have had a rational basis somewhere else where circumstances are different, that can’t really justify upholding the California law, can it? > > Justice Ginsburg’s reply to Scalia at least seemed to suggest she felt the question was irrelevant given the state of same-sex adoptions in California. I’ll let one of our resident lawyers answer that question. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [March 28, 2013, 7:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/250 "2013-03-28T19:43:31Z")
> [@John\_Mace](#): > > I’ll let one of our resident lawyers answer that question. I am not a lawyer but I think the problem is that people think that to be OK under the “Rational basis review” that there must be some real “rational” argument from the legislators. If the justices can even hypothesize any “legitimate” interest, no matter if the tenant is true or not the law will stand. It is only if the justices can’t think of any reason it could be justified or if it is just non-sense from a text standpoint that they will overturn it if it is held to the rational basis test. So the law if fine if it is rationally related to **any** legitimate interest of the government. That interest does not need to be the motivator that caused the legislators to pass the law in the first place. Obviously the man is not going to show up at any pride parades but it is well within his duty to consider any and all rational reasons the government would have to pass legislation, not matter how silly. Most of the recent SCOTUS cases which have ruled on that involved homosexuality have been held at a slightly higher and unofficial standard many call rational with bite. This is mostly because IMHO they are unwilling to elevate sexual preference to a full protected class as this would cause country wide changes in laws. Under rational “with bite” the same general rational basis rules hold except they will overturn the law if it was passed due to various factors like animus. So while it is easy and may feel good to jump all over a justice who doesn’t share your world view, I will remain hopeful that his questions were an attempt to think if the law could have been passed due to any rational idea or if it was based on animus. It is unfair and a logical fallacy to take those statements as his personal standing, he could have been playing the “devils advocate” or he may have just been dreaming up justifications which could meet the standard. > [@](#): > > ‘The Constitution does not prohibit legislatures from enacting stupid laws.’" -Thurgood Marshall ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [March 28, 2013, 7:47pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/251 "2013-03-28T19:47:51Z")
Gah, I wish I could remember where I found it, but I read a list of quotes out there of things that Scalia has compared homosexuality to. The only one I remember, because it was called out as particularly insidious, was an implication that a gay relationship was of no more emotional or legal significance than that of roommates. Anyway, the quotes seemed to add up to a man who personally does not like homosexuality, to say the least. If I find it, I’ll point to 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:** [March 28, 2013, 7:50pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/252 "2013-03-28T19:50:12Z")
> [@rat\_avatar](#): > > I am not a lawyer but I think the problem is that people think that to be OK under the “Rational basis review” that there must be some real “rational” argument from the legislators. > > If the justices can even hypothesize any “legitimate” interest, no matter if the tenant is true or not the law will stand. > > It is only if the justices can’t think of any reason it could be justified or if it is just non-sense from a text standpoint that they will overturn it if it is held to the rational basis test. > > So the law if fine if it is rationally related to **any** legitimate interest of the government. That interest does not need to be the motivator that caused the legislators to pass the law in the first place. > > Obviously the man is not going to show up at any pride parades but it is well within his duty to consider any and all rational reasons the government would have to pass legislation, not matter how silly. > > Most of the recent SCOTUS cases which have ruled on that involved homosexuality have been held at a slightly higher and unofficial standard many call rational with bite. This is mostly because IMHO they are unwilling to elevate sexual preference to a full protected class as this would cause country wide changes in laws. Under rational “with bite” the same general rational basis rules hold except they will overturn the law if it was passed due to various factors like animus. > > So while it is easy and may feel good to jump all over a justice who doesn’t share your world view, I will remain hopeful that his questions were an attempt to think if the law could have been passed due to any rational idea or if it was based on animus. > > It is unfair and a logical fallacy to take those statements as his personal standing, he could have been playing the “devils advocate” or he may have just been dreaming up justifications which could meet the standard. Well, yeah, I think I already addressed that first part and the stuff you added about the “with bite” analysis is important to understand, too. One might argue that if a Justice was inclined to want SSM to be legal, and was considering this under rational basis review, he or she would be remiss if they knew of some “rational basis” but failed to bring it up because they wanted the ruling to go a particular way. We might call that Judicial passive activism. 🙂 ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [March 28, 2013, 7:54pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/253 "2013-03-28T19:54:06Z")
> [@Leaper](#): > > Gah, I wish I could remember where I found it, but I read a list of quotes out there of things that Scalia has compared homosexuality to. The only one I remember, because it was called out as particularly insidious, was an implication that a gay relationship was of no more emotional or legal significance than that of roommates. > > Anyway, the quotes seemed to add up to a man who personally does not like homosexuality, to say the least. > > If I find it, I’ll point to it. 😛 That is actually irrelevant, it is well known he is not a gay rights advocate. It does not mean his questions he asked this week were “trolling” or improper for his position. He has his position because he is conservative. I would personally prefer to have a more liberal court but unless you can show where he uses his own personal biases as the justifications for a ruling you have no point. Note if you go watch the hearings for DOMA in the house and the signing you will See that except for a handful of representatives everyone has those ugly quotes. Including Bill Clinton. That is the amazing thing about the movement, how fast it has moved. The Justice may not change his mind before he dies but the whole point is that rational basis review has no relation to the justices personal beliefs at all. ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/254 "2013-03-28T20:09:08Z")
> [@Leaper](#): > > Gah, I wish I could remember where I found it, but I read a list of quotes out there of things that Scalia has compared homosexuality to. The only one I remember, because it was called out as particularly insidious, was an implication that a gay relationship was of no more emotional or legal significance than that of roommates. It’s in his dissent in _Romer_. If he said “emotional significance” I would be surprised. I would not be surprised if people get upset because they imagine he said that. Or that they made up that he “implied” it. He’s a textualist. If he wants to say something, he’ll say it. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [March 28, 2013, 8:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/255 "2013-03-28T20:24:19Z")
But aren’t many people already making predictions about how the judges will rule based on liberal/conservative lines? Should we NOT be doing so? Or should we only be doing so based on factors that are not “Justice X hates gays”? ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [March 28, 2013, 8:33pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/256 "2013-03-28T20:33:10Z")
> [@tim314](#): > > Putting aside my feelings about Scalia’s argument, I’d like to ask about rational basis here. > > If a California law had no rational basis in California, but a similar law might have had a rational basis somewhere else where circumstances are different, that can’t really justify upholding the California law, can it? > > Justice Ginsburg’s reply to Scalia at least seemed to suggest she felt the question was irrelevant given the state of same-sex adoptions in California. The question presented at the District Court level was whether Prop 8 had a rational basis, and Judge Walker had a trial at which he heard evidence and expert testimony on the question. If you want to understand the full background of what went on and the legal reasoning, you can read Judge Walker’s 136-page [decision](https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf). Wikipedia also has a good summary of the [trial evidence](http://en.wikipedia.org/wiki/Hollingsworth_v._Perry#Trial). David Boies and Ted Olson lead the legal team for the opponents of Prop 8 and put on substantial evidence supporting SSM and arguing that the only reasons for opposing SSM are religious in nature, which are not valid as a “rational basis” because basing a law solely on religious reasons would violate the First Amendment. The proponents of Prop 8 did not put on a particularly effective response. As Judge Walker summarized (at page 8-10 & 16 of his decision): > [@](#): > > While proponents vigorously defended the constitutionality of Proposition 8, they did so based on legal conclusions and cross-examinations of some of plaintiffs’ witnesses, eschewing all but a rather limited factual presentation. Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else, \* \* \* to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” Doc #172-1 at 21. Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. See generally Doc #172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. Doc #172-1 at 75 et seq. > > . . . > > Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” Tr 3037:25-3040:4. > > Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite sex sexual activity. > > . . . > > Plaintiffs’ experts testified that no meaningful differences exist between same-sex couples and opposite-sex couples. Blankenhorn identified one difference: some opposite-sex couples are capable of creating biological offspring of both spouses while same-sex couples are not. Based on the testimoy, Judge Walker concluded that: “excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” He found that denying SSM did not in any affect the the ability or likeliehood of opposite sex couples from procreating, and all of the other reasons that the proponents raised were factually unsupported or not related to any legitmate reason to deny SSM (such as, for example, moral opprobium of gays). His conclusion, however, was based in part on the fact that California had adoption law that permitted same sex couples to adopt and domestic partnership laws that provided marriage-like benefits to same sex registered domestic partners. So, there is a chance that another trial in another state with somewhat different laws could come to a different conclusion as to whether there “rational basis” for SSM in that state. Before the Supreme Court, however, is Judge Walker’s decision after trial as it applies to California (as well as the unique circumstance of Prop 8 having been adopted after SSM was legal and practiced for some time), and other state’s laws are not really relevant to this paticular case. What may be very interesting is what could happen if SSM is upheld in California on non-procedural grounds. Depending on the Supreme Court’s decision, it could apply pretty much automatically to all states, apply pretty much automatically to all states with domestic partnership laws or which permit same sex couples to adopt, or require a detailed trial in each state, among other possibilities. ---
**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, 8:36pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/257 "2013-03-28T20:36:29Z")
> [@Leaper](#): > > But aren’t many people already making predictions about how the judges will rule based on liberal/conservative lines? Should we NOT be doing so? Or should we only be doing so based on factors that are not “Justice X hates gays”? I think the idea that Scalia “hates gays” does not belong in reasoned debate about the subject because it’s so difficult to know such a thing. And we should consider that two people might have differing views about the law as it applies to gays without either of those people “hating” gays. We certainly expect our SCOTUS justices to put aside any person feelings they have about people or groups of people when applying the law. ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/258 "2013-03-28T20:38:50Z")
> [@Billdo](#): > > Wikipedia also has a good summary of the [trial evidence](http://en.wikipedia.org/wiki/Hollingsworth_v._Perry#Trial). > > > [@](#): > > > > When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” Ah, the [John Kyl](http://knowyourmeme.com/memes/events/not-intended-to-be-a-factual-statement) School of Rhetoric. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 28, 2013, 9:22pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/259 "2013-03-28T21:22:38Z")
> [@tim314](#): > > Putting aside my feelings about Scalia’s argument, I’d like to ask about rational basis here. > > If a California law had no rational basis in California, but a similar law might have had a rational basis somewhere else where circumstances are different, that can’t really justify upholding the California law, can it? > > Justice Ginsburg’s reply to Scalia at least seemed to suggest she felt the question was irrelevant given the state of same-sex adoptions in California. More properly it goes to the point considering the court was being invited to rule broadly. I view Scalia’s questioning as getting right to that point. If there is no rational basis in California due to existing law allowing same sex couples to adopt, then the question Scalia raises is _if_ rational basis would exist in those states which do not provide for such adoptions? If yes, then any ruling striking down Prop 8 on those grounds would be limited to California (and perhaps other similarly situated states). If no, then a broader ruling affecting all 50 states would not be precluded on a rational basis ground. ---
**Author:** ![vd](https://avatars.discourse-cdn.com/v4/letter/v/b19c9b/32.png) [@vd](https://boards.straightdope.com/u/vd)\ **Post date:** [March 28, 2013, 9:40pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/260 "2013-03-28T21:40:18Z")
> [@Billdo](#): > > > [@Walker](#): > > > > At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. And that one witness has since changed his views and now supports SSM. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=12) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=14)