# 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:** 15
**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 29, 2013, 9:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/281 "2013-03-29T21:51:45Z")
> [@John\_Mace](#): > > 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. A justice _might_ put aside overt hatred, but I think his reasoning could easily still be influenced by prejudice. Suppose a racist justice were judging a case on interracial marriage. He might say, “Well, black people are perhaps inferior parents. By allowing, say, a white man to marry a black woman, we allow the children of a white man to be raised by a black woman. So the State’s interest in the well-being of the children gives the State a basis for banning interracial marriage.” A non-racist judge would probably never even consider the notion that one’s race could disqualify one as being a suitable parent. Of course, it’s a lot harder to make that argument when race is involved, because that triggers strict scrutiny. But why don’t the more conservative Justices consider gays a suspect classification? Clearly they’re a minority which has been the victim of significant discrimination. Maybe they think being gay is just a behavior and not an immutable trait. But if so, I would consider that belief a symptom of anti-gay prejudice. Or maybe they think that gays are such a powerful political force that they don’t need any protection. Chief Justice Roberts seemed to me to be suggesting this in the Windsor hearing when he talked about how quickly attitudes have changed. He sees this as evidence of powerful political forces (ignoring, it seems to me, the huge amount of time and money that has been spent in the _other_ direction, to keep same-sex marriage illegal). To me, there’s a more obvious explanation for the “sea change”. As it’s become more socially acceptable for people to come out, more people have had conversations with their gay friends and loved ones, and realized “Hey, they’re not much different than everyone else”. But to someone who’s still blinded by anti-gay prejudice, it can’t _possibly_ be that society is realizing the gay rights movement is in the right. Their success is seen as a sign of their overwhelming political might. Anyway, it’s not as if the courts have ever been immune to prejudice. Surely racial prejudice played a role in decisions like Dred Scott or Plessy. Why should I expect today’s Justices to be any more immune to prejudice against gays? Certainly Justice Scalia’s comments have done nothing to reassure me. ---
**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 29, 2013, 11:08pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/282 "2013-03-29T23:08:56Z")
> [@tim314](#): > > A justice _might_ put aside overt hatred, but I think his reasoning could easily still be influenced by prejudice. > > Suppose a racist justice were judging a case on interracial marriage. He might say, “Well, black people are perhaps inferior parents. By allowing, say, a white man to marry a black woman, we allow the children of a white man to be raised by a black woman. So the State’s interest in the well-being of the children gives the State a basis for banning interracial marriage.” A non-racist judge would probably never even consider the notion that one’s race could disqualify one as being a suitable parent. > > Of course, it’s a lot harder to make that argument when race is involved, because that triggers strict scrutiny. But why don’t the more conservative Justices consider gays a suspect classification? Clearly they’re a minority which has been the victim of significant discrimination. Maybe they think being gay is just a behavior and not an immutable trait. But if so, I would consider that belief a symptom of anti-gay prejudice. > > Or maybe they think that gays are such a powerful political force that they don’t need any protection. Chief Justice Roberts seemed to me to be suggesting this in the Windsor hearing when he talked about how quickly attitudes have changed. He sees this as evidence of powerful political forces (ignoring, it seems to me, the huge amount of time and money that has been spent in the _other_ direction, to keep same-sex marriage illegal). To me, there’s a more obvious explanation for the “sea change”. As it’s become more socially acceptable for people to come out, more people have had conversations with their gay friends and loved ones, and realized “Hey, they’re not much different than everyone else”. But to someone who’s still blinded by anti-gay prejudice, it can’t _possibly_ be that society is realizing the gay rights movement is in the right. Their success is seen as a sign of their overwhelming political might. > > Anyway, it’s not as if the courts have ever been immune to prejudice. Surely racial prejudice played a role in decisions like Dred Scott or Plessy. Why should I expect today’s Justices to be any more immune to prejudice against gays? Certainly Justice Scalia’s comments have done nothing to reassure me. OK, if you want to make the case that Scalia “hates gays”, knock yourself out. So far, you haven’t done a very good job of it, but maybe you’ve been saving all your good arguments for later. ---
**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 30, 2013, 12:27am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/283 "2013-03-30T00:27:09Z")
> [@John\_Mace](#): > > The idea that he is somehow beholden to the Church on the issue of SSM doesn’t make sense. The problem with Scalia is that he believes that simply saying something is a sin is enough of a state interest to meet the rational basis test. The State, according to him, need only show that homosexuality is somehow a moral flaw, and BINGO! the State can regulate it in almost any way it wants. No need to show that it actually is harmful, or that procreation is an inherent part of marriage, simple disapproval of the homosexual lifestyle as immoral meets the rational basis test. In that sense, his views on the immorality of homosexuality, are clearly influential on his decisionmaking in cases involving homosexual rights. ---
**Author:** ![SlackerInc](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slackerinc/32/275_2.png) [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)\ **Post date:** [March 30, 2013, 2:16am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/284 "2013-03-30T02:16:55Z")
I generally detest Scalia, and I strongly support SSM. But I must confess that reading part of the court transcript, when Scalia was questioning Olson, gave me serious pause as to whether it is actually unconstitutional to ban SSM. Wrong? Sure. But unconstitutional? When did that become true? > [@](#): > > JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? > Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this? > MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools. > JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. > (Laughter.) > JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional? > MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional - > JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying? > MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it - > JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional. > MR. OLSON: Yes. > JUSTICE SCALIA: Was it always unconstitutional? > MR. OLSON: It was constitutional when we – as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that - > JUSTICE SCALIA: I see. When did that happen? When did that happen? > MR. OLSON: There’s no specific date in time. This is an evolutionary cycle. Not too convincing for me. (I mean, was there some point when he believes it was “semi-constitutional”?). Maybe someone here can make a better case than Olson did there? ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 30, 2013, 2:38am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/285 "2013-03-30T02:38:40Z")
> [@SlackerInc](#): > > Not too convincing for me. (I mean, was there some point when he believes it was “semi-constitutional”?). Maybe someone here can make a better case than Olson did there? Scalia’s asking when it became unconstitutional. The answer is “Just this week, when the other side failed to supply a rational basis for the legislation.” If the law says _“you can’t marry that white lady, because you’re black; were you white, you could”_ – well, that’s strict scrutiny; we’d need to hear a really terrific argument. If the law says _“you can’t marry that white lady, because you’re ten; were you fifteen, you could”_ – that’s a lower bar, even a weak argument will do. Could the other side beat strict scrutiny? Certainly not. Did they clear the low bar of rational basis? As it happens, no, they didn’t. So the law falls right now. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [March 30, 2013, 2:41am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/286 "2013-03-30T02:41:07Z")
I feel pity for poor Olson… What he should have said was that it was always unconstitutional, from the date of the ratification of the 14th Amendment. Denying equal rights to a subset of the population is a violation of the Equal Protection Clause. Period. The fact that it took time for us to recognize this is, obviously, the case of “social evolution” spoken of. The allusion to interracial marriage is, I think, a scoring point. It took a growing social awareness of civil rights to comprehend that such marriage is a foundational right, just as it took such a expansion of consciousness with regard to gays. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 30, 2013, 3:04am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/287 "2013-03-30T03:04:37Z")
Fuck dis shit! Gay marriage! Gun control! Abortion! The issues in American politics that matter all have to do with **who gets what!** And, yes, “what” means **money** and nothing else! ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 30, 2013, 3:38am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/288 "2013-03-30T03:38:44Z")
> [@tim314](#): > > A justice _might_ put aside overt hatred, but I think his reasoning could easily still be influenced by prejudice. > > …Anyway, it’s not as if the courts have ever been immune to prejudice. Surely racial prejudice played a role in decisions like Dred Scott or Plessy. Why should I expect today’s Justices to be any more immune to prejudice against gays? Certainly Justice Scalia’s comments have done nothing to reassure me. What about the other Justices? Do you see any pro-gay rights supporters among them? Do you think there might be any off-setting bias? ---
**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 30, 2013, 3:54am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/289 "2013-03-30T03:54:12Z")
> [@doorhinge](#): > > What about the other Justices? Do you see any pro-gay rights supporters among them? Do you think there might be any off-setting bias? You just don’t get it. Being pro-SSM is correct, and so is not a bias. We don’t need to worry about that, It’s only the anti-SSM that is wrong, and so is a concern. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [March 30, 2013, 5:42am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/290 "2013-03-30T05:42:52Z")
Billdo, one thing that seems to be ignored is Walker’s bias. There is evidence of it in the portions of his explanation that you cited. To make the point, I offer here what he reasonably could have said—and should have said—when restating the views of the losing side. I made just minor alterations that simply changes the he way he frames the debate: (in italics) 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\* is likely to result in\* 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 \*represents a positive _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_—and cannot—\*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. ---
**Author:** ![SlackerInc](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slackerinc/32/275_2.png) [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)\ **Post date:** [March 30, 2013, 6:01am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/291 "2013-03-30T06:01:59Z")
**Trinopus** , I like your explanation better. So, another question might be: what forms of discrimination are still not understood to be violations of the 14th Amendment, but will be eventually? I’m a nocturnal person, so “diurnalism” would be my nomination. ---
**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 30, 2013, 6:56am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/292 "2013-03-30T06:56:46Z")
> [@magellan01](#): > > Billdo, one thing that seems to be ignored is Walker’s bias. There is evidence of it in the portions of his explanation that you cited. To make the point, I offer here what he reasonably could have said—and should have said—when restating the views of the losing side. I made just minor alterations that simply changes the he way he frames the debate: (in italics) I’ve read, and re-read, all the quotes, and I’m having a really hard time coming up with any evidence whatsoever that Walker was biased. Surely you don’t believe all minority judges must recuse themselves from any case with a racial component, Hispanic judges can’t hear immigration cases, or that any judge over the age of 50 is biased in any age discrimination case, or that the only judges who can properly hear any rape, sexual harrassment, or sex discrimination case are neutered or transgendered. So where is this “bias” your seeing? I ask, because every court that considered the issue found, in fact, Judge Walker did not have to recuse himself due to “bias”. ---
**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 30, 2013, 1:10pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/293 "2013-03-30T13:10:43Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Scalia’s asking when it became unconstitutional. > > The answer is “Just this week, when the other side failed to supply a rational basis for the legislation.” > > If the law says _“you can’t marry that white lady, because you’re black; were you white, you could”_ – well, that’s strict scrutiny; we’d need to hear a really terrific argument. If the law says _“you can’t marry that white lady, because you’re ten; were you fifteen, you could”_ – that’s a lower bar, even a weak argument will do. > > Could the other side beat strict scrutiny? Certainly not. Did they clear the low bar of rational basis? As it happens, no, they didn’t. So the law falls right now. Except there is a “rational basis”. That’s the problem that Scalia was getting at. When did the courts decide that sexual orientation constituted a suspect class, deserving of a higher level of scrutiny than rational basis? Everyone, including Olsen, seems to be dancing around that, but that’s what it takes for anti-SSM laws to be unconstitutional. ---
**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 30, 2013, 1:58pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/294 "2013-03-30T13:58:21Z")
> [@John\_Mace](#): > > Except there is a “rational basis”. If you think “enough people think it is a sin” is enough of a legitimate governmental interest, then, yes, you can become easily convinced that there is a “rational basis”. Or if you buy into the “marriage is for procreation” argument, you can be convinced that there is a rational basis. I find the latter to be unpersuasive and contrary to the evidence, and the former to be against the idea of individual rights. Scalia’s Mileage, of course, will vary. > [@John Mace](#): > > That’s the problem that Scalia was getting at. When did the courts decide that sexual orientation constituted a suspect class, deserving of a higher level of scrutiny than rational basis? Everyone, including Olsen, seems to be dancing around that, but that’s what it takes for anti-SSM laws to be unconstitutional. Not since Romer and Lawrence, it’s not. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [March 30, 2013, 2:30pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/295 "2013-03-30T14:30:11Z")
> [@Hamlet](#): > > I’ve read, and re-read, all the quotes, and I’m having a really hard time coming up with any evidence whatsoever that Walker was biased. Surely you don’t believe all minority judges must recuse themselves from any case with a racial component, Hispanic judges can’t hear immigration cases, or that any judge over the age of 50 is biased in any age discrimination case, or that the only judges who can properly hear any rape, sexual harrassment, or sex discrimination case are neutered or transgendered. So where is this “bias” your seeing? > > I ask, because every court that considered the issue found, in fact, Judge Walker did not have to recuse himself due to “bias”. First, I pointed out specifically where I think one can see his bias. You seem to handwave that I guess. ::shrug:: As far as recusal, no, _he didn’t have to_. But I don’t think that is the right metric. The usual one, as I understand it, is to avoid any semblance of impropriety or favor. No doubt the issue of whether Walker should have recused himself was raised in Walker’s mind, and there would be zero downside to him recusing himself. In fact, he would have made himself look good. So, why not? I think it was because he wanted to be involved in the trial due to his vested interest in it. Again, the fact that he is biased I think is evident in how he framed the his opponents thinking. ---
**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 30, 2013, 2:42pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/296 "2013-03-30T14:42:17Z")
> [@magellan01](#): > > First, I pointed out specifically where I think one can see his bias. You seem to handwave that I guess. ::shrug:: Not handwave, simply not seeing how adding a few adjectives shows bias. Perhaps I’m slow, but I don’t see the changes you made show any bias on the part of the judge. If you could, explain it to me further please. > [@magellan](#): > > As far as recusal, no, _he didn’t have to_. But I don’t think that is the right metric. The usual one, as I understand it, is to avoid any semblance of impropriety or favor. No doubt the issue of whether Walker should have recused himself was raised in Walker’s mind, and there would be zero downside to him recusing himself. In fact, he would have made himself look good. So, why not? I think it was because he wanted to be involved in the trial due to his vested interest in it. You can “think” whatever you want, I can help that. But, unless you have some actual evidence that he was biased (outside of the obvious conclusionary "well of course he was biased, he ruled in favor of SSM) I don’t think your all that persuasive. Do you believe that all African American judges should recuse themselves from all cases with race simply because of their skin color? Or that female judges have a bias in cases involving sexual discrimination and are thus should recuse themselves? How about the courts that ruled he wasn’t biased, were they wrong? ---
**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 30, 2013, 3:03pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/297 "2013-03-30T15:03:35Z")
> [@Hamlet](#): > > Not since Romer and Lawrence, it’s not. So why didn’t Olsen say that? ---
**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 30, 2013, 3:08pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/298 "2013-03-30T15:08:25Z")
> [@Hamlet](#): > > If you think “enough people think it is a sin” is enough of a legitimate governmental interest, then, yes, you can become easily convinced that there is a “rational basis”. Or if you buy into the “marriage is for procreation” argument, you can be convinced that there is a rational basis. I find the latter to be unpersuasive and contrary to the evidence, and the former to be against the idea of individual rights. Scalia’s Mileage, of course, will vary. Not just Scalia. IANAL, but it is my impression that learned legal minds are split on that issue, both here on this MB and IRL. And I don’t mean that in a creationist’s “teach the controversy” sort of way. Correct me if I’m wrong on that. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 30, 2013, 3:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/299 "2013-03-30T15:17:03Z")
> [@John\_Mace](#): > > Except there is a “rational basis”. That’s the problem that Scalia was getting at. When did the courts decide that sexual orientation constituted a suspect class, deserving of a higher level of scrutiny than rational basis? Everyone, including Olsen, seems to be dancing around that, but that’s what it takes for anti-SSM laws to be unconstitutional. Wasn’t that Kagan’s point, though? That anti-SSM laws leave a post-menopausal woman able to marry a man, but unable to marry a woman, a distinction which fails to clear even the insanely low bar of the rational-basis test? ---
**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 30, 2013, 3:19pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/300 "2013-03-30T15:19:58Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Wasn’t that Kagan’s point, though? That anti-SSM laws leave a post-menopausal woman able to marry a man, but unable to marry a woman, a distinction which fails to clear even the insanely low bar of the rational-basis test? I guess it just depends on how “rational” one needs one’s “rational basis” to be. Besides, that was not the only “rational basis” that was discussed. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=14) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=16)