# 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:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2013, 6:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/61 "2013-03-26T18:27:03Z")
> [@jtgain](#): > > Nah, I agree with Bricker. As a matter of policy, you can’t say that a law passed by a majority of the citizens at a regularly held election has absolutely no one with standing to defend it. And if it’s true, as **alphaboi867** says, that this is a matter for individual states to resolve, California has already resolved it: California law permits proponents of initiatives standing to defend their initiatives if they are challenged. See _Building Industry Assn. v. City of Camarillo_, 718 P. 2d 68 (Cal. 1986). ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [March 26, 2013, 6:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/62 "2013-03-26T18:27:55Z")
> [@jtgain](#): > > Nah, I agree with Bricker. As a matter of policy, you can’t say that a law passed by a majority of the citizens at a regularly held election has absolutely no one with standing to defend it. That’s not what happened. There were 2 government officials with standing to defend it; they just failed to do so. In any event I think the biggest counter-argument on the standing issue is that the CA Supreme Court ruled Prop 8’s backers did have standing under CA law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2013, 6:31pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/63 "2013-03-26T18:31:01Z")
And what scares me greatly is the overarching attitude inn this thread, and reflected in all the media commentary I have read in the last few days, in which the underlying theme is that the Court should decide what society is ready for. I don’t like this view. The Supreme Court is not our wise uber-Guardians. They are not a super-legislature. Almost all the commentary I see is speculating how the Court should weigh the growing acceptance of same-sex marriage, or how societal attitudes have shifted. The Court’s function is to interpret the law. I reject the concept that they should be leavening that interpretation with their views of what the law SHOULD be. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2013, 6:34pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/64 "2013-03-26T18:34:39Z")
> [@alphaboi867](#): > > That’s not what happened. There were 2 government officials with standing to defend it; they just failed to do so. In any event I think the biggest counter-argument on the standing issue is that the CA Supreme Court ruled Prop 8’s backers did have standing under CA law. What about a conservative Christian who swears that he feels that his marriage is cheapened because gays are allowed to marry? What about a local Justice of the Peace who would be forced to go against his religious beliefs by marrying gay people? (Not that I agree with the two opinions above, but isn’t it enough for standing?) ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [March 26, 2013, 6:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/65 "2013-03-26T18:35:38Z")
> [@Smapti](#): > > I am not a constitutional law expert, but it seems to me that “make SSM legal in CA but not anywhere else” is at best a punt that’s going to come back to haunt the Supreme Court in 4-5 years, when a legally married CA couple moves to AZ and sues on equal protection/full faith and credit grounds. I can’t imagine that the justices would want to deal with the heartache of hearing the exact same case twice in a decade. This is what I was talking about in my earlier post. I see this as being the issue that could produce a broader ruling that applies to all 50 states. At a minimum, if the ruling only allows SSM in Cali, I expect we will see suits filed and starting to work their way back to SCOTUS over this issue very quickly. ---
**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 26, 2013, 6:38pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/66 "2013-03-26T18:38:57Z")
> [@Bricker](#): > > And what scares me greatly is the overarching attitude inn this thread, and reflected in all the media commentary I have read in the last few days, in which the underlying theme is that the Court should decide what society is ready for. > > I don’t like this view. The Supreme Court is not our wise uber-Guardians. They are not a super-legislature. Almost all the commentary I see is speculating how the Court should weigh the growing acceptance of same-sex marriage, or how societal attitudes have shifted. > > The Court’s function is to interpret the law. I reject the concept that they should be leavening that interpretation with their views of what the law SHOULD be. Mostly agree, but where I would part company is that we have a situation where sexual orientation, once thought to be deviant, chosen behavior, is now seen as innate and immutable. Does that not make us look at sexual orientation in a different way than we did 50 years ago? Does that not make sexual orientation much like race? And, just so we don’t derail this thread, if you and the rest of us don’t want to get into yet another SSM debate in this thread, that’s fine with me. It might be best if we just concentrated on what we think the court will do and why. ---
**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 26, 2013, 6:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/67 "2013-03-26T18:41:21Z")
> [@Bricker](#): > > The Court’s function is to interpret the law. I reject the concept that they should be leavening that interpretation with their views of what the law SHOULD be. Let’s be honest here… I want the court to impose _my_ view of what the law should be. (But if they impose the other guys’ view, then they’re a bunch of no good activist judges!) But seriously, I can’t say for sure that the court taking an “activist” stance in a pro-SSM direction will make them any more likely to take an activist stance in a more conservative direction on future issues. I _can_ say the court taking a pro-SSM stance now will lead to a lot of people finally having a level of equality under the law that they have previously been denied. To me, that’s more than worth it. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 26, 2013, 6:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/68 "2013-03-26T18:43:32Z")
> [@Bricker](#): > > And what scares me greatly is the overarching attitude inn this thread, and reflected in all the media commentary I have read in the last few days, in which the underlying theme is that the Court should decide what society is ready for. Wrong. You’re totally misrepresenting whatever commentary you’re looking at. The Court should be \*responsive \*to what society is ready for, and wants. And it usually is - “The Supreme Court follows the election returns”, remember? Remember too that the pro-bigotry legal argument is so threadbare and contrived that acting as if it doesn’t even exist is entirely reasonable. > [@](#): > > The Court’s function is to interpret the law. I reject the concept that they should be leavening that interpretation with their views of what the law SHOULD be. Wrong again. The Court \*makes \*law every time it issues a ruling. It only rules in cases where the interpretation is \*not \*clear and \*requires \*them to make law. How the hell could they do otherwise? Amazing. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2013, 6:44pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/69 "2013-03-26T18:44:14Z")
> [@John\_Mace](#): > > Mostly agree, but where I would part company is that we have a situation where sexual orientation, once thought to be deviant, chosen behavior, is now seen as innate and immutable. Does that not make us look at sexual orientation in a different way than we did 50 years ago? Does that not make sexual orientation much like race? If opinions are changing (and I very much agree that they are) then the best place for those changing opinions to manifest themselves are at the ballot box or in state legislatures. I have a real big problem with any court simply telling me how I feel on an issue. The Constitution hasn’t changed in 50 years (at least the parts relevant to SSM) and for a court to read new words into them is very dangerous. It may be in favor of liberty this time, but once that is established as a okay thing, who knows when it will turn against it? ---
**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 26, 2013, 6:48pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/70 "2013-03-26T18:48:05Z")
> [@jtgain](#): > > What about a conservative Christian who swears that he feels that his marriage is cheapened because gays are allowed to marry? How far do you let this line of argument go? If all I have to do is feel on some emotional level that someone’s actions affect me, regardless of whether they have to do with me in any tangible way, it seems I could pretty much have automatic standing in _any_ case. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 26, 2013, 6:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/71 "2013-03-26T18:56:25Z")
> [@alphaboi867](#): > > That’s not what happened. There were 2 government officials with standing to defend it; they just failed to do so. In any event I think the biggest counter-argument on the standing issue is that the CA Supreme Court ruled Prop 8’s backers did have standing under CA law. The purpose of the California Initiative process is to give the people the ability to enact needed reforms against recalcitrant elected officials. Giving the elected officials the power to undo the will of the people by failing to respond to challenges effectively undoes that. An initiative should get its day in court and be given the best defense the people who wanted it passed can muster. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [March 26, 2013, 7:09pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/72 "2013-03-26T19:09:54Z")
> [@jtgain](#): > > What about a conservative Christian who swears that he feels that his marriage is cheapened because gays are allowed to marry? What about a local Justice of the Peace who would be forced to go against his religious beliefs by marrying gay people? > > (Not that I agree with the two opinions above, but isn’t it enough for standing?) The former has no standing unless he can demonstate actually harm might come to him, not just that his feelings were hurt. The latter may have standing (since he could be removed from office), but AFAIK no county clerks or local registrar’s are currently parties to the suit. A > [@iamthewalrus\_3](#): > > The purpose of the California Initiative process is to give the people the ability to enact needed reforms against recalcitrant elected officials. Giving the elected officials the power to undo the will of the people by failing to respond to challenges effectively undoes that… Fixing defects in a state constitution isn’t a matter for federal courts, unless the state constitution clashes with the US constitution (which CA’s doesn’t). There is no right to initiative under the US consitution. And the people of California also have a method of removing recalcitriant officials (the recall process); instead of exercising that option they elected one of those officials to an even higher office. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 26, 2013, 7:10pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/73 "2013-03-26T19:10:55Z")
> [@jtgain](#): > > If opinions are changing (and I very much agree that they are) then the best place for those changing opinions to manifest themselves are at the ballot box or in state legislatures. There’s a reason we put basic human rights in the Constitution, not easily up for popular vote, instead of statute. > [@](#): > > for a court to read new words into them is very dangerous. The words “equal protection” have been in the Constitution for a century and a half. The only “new” aspect is our increased understanding of their implications, and our deciding to take them seriously. ---
**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 26, 2013, 7:11pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/74 "2013-03-26T19:11:46Z")
i don’t know what thhe right answer answer is with regard to stadning, but I do know that Antonin Scalai is a raging asshole… > [@](#): > > JUSTICE SCALIA: Mr. Cooper, let me – let me give you one – one concrete thing. I don’t know why you don’t mention some concrete things…marriage to include same-sex couples, you must – you must permit adoption by same-sex couples, and there’s --there’s considerable disagreement among – among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not…not permit adoption by same-sex couples for that reason. Fuck this guy, there is not considerable disagreement. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [March 26, 2013, 7:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/75 "2013-03-26T19:14:25Z")
> [@Bricker](#): > > I hope this does not happen. > > As I see it, this allows any state’s executive to scuttle a particular law by simply refusing to defend it. If a state law – or constitutional provision – is properly passed and then challenged, can the governor kill the law by simply declining to defend it? It seems to me a no-standing decision here makes that course possible. Yes, but that is a state matter, and in California, the Attorney General, a separately elected official, can also choose to defend the state law, and has first crack at 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 26, 2013, 7:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/76 "2013-03-26T19:14:39Z")
> [@jtgain](#): > > If opinions are changing (and I very much agree that they are) then the best place for those changing opinions to manifest themselves are at the ballot box or in state legislatures. I have a real big problem with any court simply telling me how I feel on an issue. > > The Constitution hasn’t changed in 50 years (at least the parts relevant to SSM) and for a court to read new words into them is very dangerous. It may be in favor of liberty this time, but once that is established as a okay thing, who knows when it will turn against it? I’m not talking about “opinions”. I’m talking about scientific facts. That is, I’m not talking about how society sees homosexuality, but how science sees it. If science tells us “x” is a disease, then we try and cure it. If science tells us “x” is a naturally occurring, non-pathological condition, then we accommodate it. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 26, 2013, 7:21pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/77 "2013-03-26T19:21:05Z")
> [@Bricker](#): > > As I see it, this allows any state’s executive to scuttle a particular law by simply refusing to defend it. If a state law – or constitutional provision – is properly passed and then challenged, can the governor kill the law by simply declining to defend it? The governor, AG, etc. are elected by the very same voters, who expect them to use their authority in their best judgment. At least, that’s the argument you prefer to use when whining about the Massachusetts legislature not letting Mitt Romney appoint Ted Kennedy’s successor to the Senate. ---
**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 26, 2013, 7:25pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/78 "2013-03-26T19:25:07Z")
> [@Gangster\_Octopus](#): > > Fuck this guy, there is not considerable disagreement. Yeah, agreed, Scalia is flat out wrong on that point. Or deliberately ignoring the research that shows children of same-sex couples are as successful, as capable, and as psychologically healthy as children of opposite-sex couples. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [March 26, 2013, 7:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/79 "2013-03-26T19:27:35Z")
> [@Bricker](#): > > Neither mechanism is sufficient to correct the problem. A court case challenging the constitutionality of a statute is not put on hold pending the outcome of a future election, or a recall. If a plaintiff files a challenge, his challenge must be answered. Indeed, if the governor refuses to defend the statute, who would standing, in your view, to step in and ask for a delay to allow a recall or intervening election to happen? The Plaintiff must have standing and choose the bring the suit. In Cal, the Gov and the AG have standing and may choose to bring a suit. Nobody else that I know. This was one of the huge victories of old fashioned Justice Lewis Powell conservatism. The proponents of a bill do not necessarily have standing as members of the general public. They must be personally aggrieved and harmed. Judge Walker correctly pointed out, per a slew of conservative precedents, that their personal offense or shock isn’t an injury. And Walker is (now retired/senior status) a conservative judge. In order to overturn the Prop 8 case, the USSC must ignore a number of conservative precedents limiting access to the courthouse. They could try a Bush v. Gore, this isn’t precedent for any other case, or they could reopen the standing cases, which even liberals like me find a positive contribution to the law, but CJ Roberts is not going to stand for modifying the standing cases and letting environmentalists reverse four decades of precedent and block corporations and gov’t in environmental areas. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2013, 7:46pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/80 "2013-03-26T19:46:32Z")
> [@The\_Second\_Stone](#): > > Yes, but that is a state matter, and in California, the Attorney General, a separately elected official, can also choose to defend the state law, and has first crack at it. OK. So the AG has first crack; the governor has second. And if both of those two individuals decline to intervene, California law permits the substitution of another party to defend it. And there are a zillion cases in which this has happened. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=3) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=5)