# 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:** 5
**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, 7:47pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/81 "2013-03-26T19:47:57Z")
> [@The\_Second\_Stone](#): > > 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. No, this is isn’t about standing as plaintiffs. This is about standing to defend an existing law. No modification to standing precedents is needed. ---
**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 26, 2013, 7:50pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/82 "2013-03-26T19:50:01Z")
> [@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. In the Perry case, the Ninth Circuit sent a certified question to the California Supreme Court asking whether the official ballot initiave proponent had standing to appeal when the government did not defend the initiave. In [Perry v. Brown, 52 Cal.4th 1116 (2011)](http://scholar.google.com/scholar_case?case=18025881830846879498&hl=en&as_sdt=2&as_vis=1&oi=scholarr) the Calfornia Supreme Court found that “in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties—either as interveners or as real parties in interest—in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored,” and thus the proponents of Proposition 8 had standing. Because the California Supreme Court specifically found that the Proposition 8 proponents had standing to defend the law in state courts as a matter of state law, I think it is unlikely that the U.S. Supreme Court will find that as a matter of federal law, the proponents do not have standing to defend the law in federal courts. I’m not a scholar of arcane points of standing law, but I can see why the U.S. Supreme Court would want to avoid going there. If the court is fractured with some justices thinking that the Ninth Circuit should be affirmed, others thinking it should be reversed on the merits and others (even Justice Kennedy alone) thinking that there is no standing, with no side able to get a majority, I think that there is good chance that the court will simply dismiss in that Certiorari was “improvidently granted,” leaving matters where they stand after the Ninth Circuit decision. That would be a clear punt by the court, which would get the issue again in a few years (which it will in almost any event, unless it declares SSM constitutionally required). Whether there would be written dissents from the dismissal, I don’t know, but I think Roberts will try to do what he can to avoid them, leaving it just a judicial black hole until the next case. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [March 26, 2013, 7:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/83 "2013-03-26T19:51:23Z")
> [@tim314](#): > > 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. Plus its irrelevant. Adoption by gay couples is legal in CA, and will remain so whatever the Court decides regarding Prop 8. Even if one accepts Scalia’s premise that gay adoption is harmful, its not an example of concrete harm that would be caused by getting rid of Prop 8. And even outside of CA, its hardly true that making “marriage to include same-sex couples, you must – you must permit adoption by same-sex couples”. ---
**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, 7:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/84 "2013-03-26T19:53:20Z")
> [@tim314](#): > > 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. That’s totally understandable. But it also hearkens back to your first paragraph: what can you say to a future court that rules a fetus has an “Equal Protection right to life” in the future? If you accept the power of the court to craft its own idea of wise social policy, how can you then complain if they use that power again in a way you don’t like? Indeed, Scalia is being excoriated right now for his comment that hints he wants to impose HIS view of what’s wise and just. ---
**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 26, 2013, 7:57pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/85 "2013-03-26T19:57:48Z")
> [@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. Right, but the law _as it currently exists_ is only thus because society’s idea of homosexuality was “ewww”. It may not make sense for SCOTUS to rule on the basis of opinion polls, but it makes perfect sense for it to acknowledge an earlier fuckup that is most easily evidenced by public opinion. ---
**Author:** ![Icarus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/icarus/32/72_2.png) [@Icarus](https://boards.straightdope.com/u/Icarus)\ **Post date:** [March 26, 2013, 8:00pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/86 "2013-03-26T20:00:26Z")
> [@Simplicio](#): > > Plus its irrelevant. Adoption by gay couples is legal in CA, and will remain so whatever the Court decides regarding Prop 8. Even if one accepts Scalia’s premise that gay adoption is harmful, its not an example of concrete harm that would be caused by getting rid of Prop 8. > > And even outside of CA, its hardly true that making “marriage to include same-sex couples, you must – you must permit adoption by same-sex couples”. I particularly enjoyed Scalia’s demand for exact dates, “Well, what was that year? Huh? Well? Huh? Was it 1787 or 1826? Huh? Well? Was it a Tuesday? WAS IT 3:15 PM??? WELL? :mad:???” (…but I may be paraphrasing…) ---
**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, 8:25pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/87 "2013-03-26T20:25:29Z")
> [@alphaboi867](#): > > 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). Interpreting the California Constitution in a way that is consistent with the intentions of those writing it is absolutely a matter for the US Supreme Court. > [@](#): > > There is no right to initiative under the US consitution. I don’t see why that’s relevant. There _is_ one in the CA Constitution, and the Supreme Court ought to consider that in light of challenges against initiatives. > [@](#): > > And the people of California also have a method of removing recalcitriant officials (the recall process) They _also_ have a method of going around their recalcitrant officials without recalling them. If the people of California wanted to be restricted to the recall process for getting their government to do what they want, then they wouldn’t have put the initiative process into their constitution in the first place. ---
**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, 8:32pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/88 "2013-03-26T20:32:27Z")
> [@John\_Mace](#): > > 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. I fail to see how a scientific finding acts as an amendment to the Constitution. If the 14th amendment didn’t contemplate gay marriage in 1866 or 1960 or 1990, it doesn’t now. If science finds a new thing, then there is an amendment process in Article V of the Constitution to enact the new finding. I have a problem with 5 people changing fundamental law on the basis that “everyone just knows.” If everyone knew, they would be electing representatives who would support this obvious fact. ---
**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, 8:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/89 "2013-03-26T20:35:09Z")
> [@Bricker](#): > > No, this is isn’t about standing as plaintiffs. This is about standing to defend an existing law. No modification to standing precedents is needed. self deleted ---
**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, 8:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/90 "2013-03-26T20:35:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right, but the law _as it currently exists_ is only thus because society’s idea of homosexuality was “ewww”. It may not make sense for SCOTUS to rule on the basis of opinion polls, but it makes perfect sense for it to acknowledge an earlier fuckup that is most easily evidenced by public opinion. How do you limit that principle? What stops a five member majority from saying that the we now understand society’s idea about unborn children was wrong, and they are entitled to due process protections which include not being subject to state-sanctioned abortion? ---
**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, 8:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/91 "2013-03-26T20:35:45Z")
> [@jtgain](#): > > I fail to see how a scientific finding acts as an amendment to the Constitution. If the 14th amendment didn’t contemplate gay marriage in 1866 or 1960 or 1990, it doesn’t now. If science finds a new thing, then there is an amendment process in Article V of the Constitution to enact the new finding. I have a problem with 5 people changing fundamental law on the basis that “everyone just knows.” If everyone knew, they would be electing representatives who would support this obvious fact. _Brown_. Science told us that separate but equal, although it sounded kosher in theory, did not work in practice. ---
**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, 8:36pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/92 "2013-03-26T20:36:42Z")
> [@The\_Second\_Stone](#): > > That may be, I’m not aware of those precdents, but if they didn’t properly and timely assert their claims and grounds, they are screwed procedurally like zillions of other litigants. But they DID timely and properly assert their claims, and the California Supreme Court permitted them to substitute in. ---
**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, 8:39pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/93 "2013-03-26T20:39:02Z")
> [@John\_Mace](#): > > _Brown_. Science told us that separate but equal, although it sounded kosher in theory, did not work in practice. But it was based on the practice that the Court overturned Plessy. They said, in effect, separate but equal was complaint with the Constitution – but it’s not being actually implemented. Instead, claims of separate but equal were being used to cover decidely UNequal arrangements. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [March 26, 2013, 8:40pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/94 "2013-03-26T20:40:23Z")
> [@jtgain](#): > > I fail to see how a scientific finding acts as an amendment to the Constitution. If the 14th amendment didn’t contemplate gay marriage in 1866 or 1960 or 1990, it doesn’t now. If science finds a new thing, then there is an amendment process in Article V of the Constitution to enact the new finding. I have a problem with 5 people changing fundamental law on the basis that “everyone just knows.” If everyone knew, they would be electing representatives who would support this obvious fact. The point is that science changes the facts that the law is applied to, not that it changes the law. Death by lethal injection is currently constitutional. If scientific research found using brainscans or whatever that people executed that way spent their final moments in terrible agony, its likely that it would be found unconstitutionally “cruel and unusual”. The law would be the same, but the facts would be different. The scientific understanding in 1950 was that homosexuality was harmful, and so there was a rational reason for discouraging it. That isn’t true today, and so there’s a good argument that anti-homosexuality laws don’t have a rational basis. ---
**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 26, 2013, 8:42pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/95 "2013-03-26T20:42:21Z")
> [@iamthewalrus\_3](#): > > The purpose of the California Initiative process is to give the people the ability to enact needed reforms against recalcitrant elected officials. California voters have proven pretty conclusively that they’re collectively too stupid to wield that ability responsibly. Best that it be subverted whenever possible. ---
**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, 8:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/96 "2013-03-26T20:43:34Z")
> [@Bricker](#): > > That’s totally understandable. > > But it also hearkens back to your first paragraph: what can you say to a future court that rules a fetus has an “Equal Protection right to life” in the future? If you accept the power of the court to craft its own idea of wise social policy, how can you then complain if they use that power again in a way you don’t like? Well, I can certainly still complain that it’s the _wrong_ decision. It’d be a bit hypocritical to complain that it’s too _activist_ a decision. > [@](#): > > Indeed, Scalia is being excoriated right now for his comment that hints he wants to impose HIS view of what’s wise and just. In this thread, at least, I think Scalia is getting grief less for any sort of activism than for the fact that he thinks gay couples aren’t fit to be parents. Or, rather, he “takes no position” on whether gay parents are harmful to children, while floating the fact that they _might_ be as a justification for preventing same-sex marriage, and ignoring the research that says they’re not. ---
**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, 8:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/97 "2013-03-26T20:43:38Z")
The Court may well declare Section 5 of the Voting Rights Act unconstitutional. This is a perfect example of what I’m talking about. To my way of thinking, the Constitution is perfectly clear: Congress shall have the power to enforce voting rights through appropriate legislation. Congress has done so. That should end the inquiry. Instead, the Court apparently feels free to ask what Congress SHOULD have done, and how Congress SHOULD weigh the facts, and is evidently contemplating stepping in to override Congress’ judgement with their own. Now, as an end result, I would personally be in favor of this one. I feel Congress should do away with the Voting Rights Act. As a legislator, I’d vote to repeal it; certainly I’d vote against renewing it. But as a judge, I’d have no choice but to uphold it. This is the other side of the happy dance that comes when the Court feels free to act as a super-smart UberLegislature. ---
**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, 8:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/98 "2013-03-26T20:56:10Z")
As a Californian I am wondering, does a referendum require any constitutionality test before it is placed on the ballot? If so, then I would think that the AG should be required to defend the law, if not, however, I am not sure how you can argue that the State is required to defend something that they may in fact determine after the fact that it is, in their legal opinion, unconstitutional. ---
**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, 8:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/99 "2013-03-26T20:56:46Z")
> [@Bricker](#): > > I feel Congress should do away with the Voting Rights Act. As a legislator, I’d vote to repeal it; certainly I’d vote against renewing it. Care to explain why? (In the Voting Rights Act thread, I guess, so as not to derail this one) ---
**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, 8:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/100 "2013-03-26T20:59:56Z")
> [@jtgain](#): > > If the 14th amendment didn’t contemplate gay marriage in 1866 or 1960 or 1990, it doesn’t now. It _did_. We just didn’t realize it and act accordingly until very recently. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=4) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=6)