# 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:** 7
**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 27, 2013, 7:14am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/121 "2013-03-27T07:14:44Z")
**Bricker** , you’ve had a lot of interesting commentary in this thread, but I don’t think I have seen you predict how the Court will come out on the two cases. I’d be intrigued to hear how you think the Justices are going to break on the questions presented. (I think yesterday’s proceedings threw my initial predictions on how Perry will come out on their ear, and we’ll see how today’s argument bears on my guess about Windsor.) ---
**Author:** ![BunnyTVS](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BunnyTVS](https://boards.straightdope.com/u/BunnyTVS)\ **Post date:** [March 27, 2013, 12:19pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/122 "2013-03-27T12:19:49Z")
> [@jtgain](#): > > How did it? The authors of the amendment never intended it. Sodomy itself, let alone gay marriage, was illegal for thousands of years. I fail to see any way of integrating a right to SSM in the 14th amendment without a drastic rewrite of it. Sorry , but _what?_ I hope you’re not arguing that it was illegal in the US for thousands of years? If you’re not then firstly, since when has the laws of the US been dependent on those of other countries? Secondly which other countries have banned sodomy for thousands of years? For that matter which modern day countries have _existed_ for thousands of years? ---
**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 27, 2013, 1:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/123 "2013-03-27T13:14:29Z")
> [@doorhinge](#): > > “Takes no position” means just that. I consider it disingenuous. He’s saying “I’m not _saying_ gays are unfit to be parents, but they _might_ be, so there’s a reason for not allowing them to marry.” I suspect Justice Scalia is well aware of the research that suggests that same-sex couples are just as capable of parenting as anyone else. He won’t come out and say “I don’t think gays should be parents”, because he knows that’s not really a defensible position. So he just floats some false notion that the research is still unreliable and uses that to justify his position anyway. > [@doorhinge](#): > > The Supremes aren’t deciding if gay couples are or are not good parents. That is not one of the legal questions before the court. But whether there can be a rational basis for Proposition 8 _is_ a relevant question, and Justice Scalia was floating the hypothetical dangers of gay parents as a possible reason. (Never mind that that couldn’t have possibly been a basis of Prop 8, since same-sex adoptions are legal in California anyway.) This all came out of Justice Kagan’s line of questioning about whether there is any actual reason to exclude same-sex couples from marriage. ---
**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 27, 2013, 1:58pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/124 "2013-03-27T13:58:13Z")
> [@doorhinge](#): > > The Justices have already read the original case, the appeals, the amicus briefs, their own research on past and pertinent cases, of course, and have discussed the case amongst themselves. If the history of past questioning is any indicator, they’ve proven that a Justice doesn’t not necessarily vote on an issue based on the questions they asked in court. Todays questions were an effort by the Supremes to help end any lingering doubts they may have. Yeah, I was explaining to a friend last night bow minor this part of the whole process is. One hour or so as opposed to the days and days of research and reading briefs (either by the justices and/or their clerks) to understand the arguments made by both sides. I’d say this is just the tip of the iceberg, but that might be an overstatement. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2013, 2:22pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/125 "2013-03-27T14:22:20Z")
> [@rat\_avatar](#): > > Are the questions exactly the same as required for a summary judgment? > > Also you are ignoring newer rulings which greatly weaken Baker v Nelson, e.g. Lawrence v. Texas which directly weaken the summary judgement of Baker v Nelson. > > You are also overstating the validity of a summary judgement, “The appeal is dismissed for want of a substantial federal question.” > > But when Baker v Nelson was heard it was not full understood if sexuality was mutable. Now I know they didn’t really spend too much on that, but by K’s question you can tell HE was thinking about if that would result in heightened scrutiny. > > I have no idea where this case is going but to flat out and say Baker v Nelson should be the law of the land is not as clear cut as you pressented it. I agree – but I was responding to **The Second Stone** ’s response to my more broad question with that, to illustrate that his answer of “stare decisis” was not as workable as he might think. But since you mention it – Baker establishes precedent. A finding that there’s a cognizable federal EP sexual orientation claim would necessarily overrule Baker – just as Lawrence necessarily overruled Bowers. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [March 27, 2013, 2:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/126 "2013-03-27T14:41:08Z")
> [@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. By this logic, I could argue that there is no constitutional right to own any type of firearm other than a muzzle-loader, since science had not contemplated AR-15s in 1789. ---
**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 27, 2013, 2:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/127 "2013-03-27T14:51:13Z")
> [@jtgain](#): > > I fail to see how a scientific finding acts as an amendment to the Constitution. A scientific finding can absolutely be relevant to the interpretation of the Constitution, as established by judicial precedent. How the Equal Protection clause is applied depends on whether the action in question affects groups which form a suspect classification. And the fact that a group possesses an immutable trait has been used as part of the reasoning in determining if they’re a suspect classification. Whether or not something is an immutable trait is a scientific question. ---
**Author:** ![tullsterx](https://avatars.discourse-cdn.com/v4/letter/t/e9bcb4/32.png) [@tullsterx](https://boards.straightdope.com/u/tullsterx)\ **Post date:** [March 27, 2013, 2:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/128 "2013-03-27T14:51:32Z")
They’re going to “punt” and send it back to the California Supreme Court or something like that. ---
**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 27, 2013, 2:52pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/129 "2013-03-27T14:52:10Z")
> [@Bricker](#): > > But since you mention it – Baker establishes precedent. A finding that there’s a cognizable federal EP sexual orientation claim would necessarily overrule Baker – just as Lawrence necessarily overruled Bowers. Not quite. The primary issue presented in Baker was that denial of a same-sex marriage license constituted gender discrimination, not discrimination on the basis of orientation. While a decision on the merits might nonetheless be dispositive, a summary dismissal must be read narrowly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2013, 2:54pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/130 "2013-03-27T14:54:30Z")
> [@Billdo](#): > > **Bricker** , you’ve had a lot of interesting commentary in this thread, but I don’t think I have seen you predict how the Court will come out on the two cases. > > I’d be intrigued to hear how you think the Justices are going to break on the questions presented. > > (I think yesterday’s proceedings threw my initial predictions on how Perry will come out on their ear, and we’ll see how today’s argument bears on my guess about Windsor.) On Perry: First, standing – this case won’t be tossed on standing. A sovereign state in our dual-sovereign system has plenary power to decide who may represent its interest. California has standing to defend the validity of Proposition 8, and California law authorizes initiative proponents to represent and defend that interest in court. Second, merits: 5-4 Prop 8 is killed on a Romer v. Evans basis (rational basis “with teeth”), hinged on the having-and-taking away vs. never having; with Kennedy, Scalia, Alito, and Thomas in the minority and Roberts joining the majority and writing the opinion. At least one “concurring in the result” member of the majority will urge a broader basis. ---
**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 27, 2013, 3:00pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/131 "2013-03-27T15:00:12Z")
> [@Bricker](#): > > First, standing – this case won’t be tossed on standing. A sovereign state in our dual-sovereign system has plenary power to decide who may represent its interest. California has standing to defend the validity of Proposition 8, and California law authorizes initiative proponents to represent and defend that interest in court. Agreed. I don’t necessarily agree with the result, but I foresee zero possibility that SCOTUS will effectively overrule the Supreme Court of California on what is effectively a matter of state law. ---
**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 27, 2013, 3:04pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/132 "2013-03-27T15:04:04Z")
> [@Bricker](#): > > On Perry: > > Second, merits: 5-4 Prop 8 is killed on a Romer v. Evans basis (rational basis “with teeth”), hinged on the having-and-taking away vs. never having; with Kennedy, Scalia, Alito, and Thomas in the minority and Roberts joining the majority and writing the opinion. At least one “concurring in the result” member of the majority will urge a broader basis. But limited to CA, right? No automatic SSM for all the states. ---
**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 27, 2013, 3:05pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/133 "2013-03-27T15:05:56Z")
It would presumably foreclose the potential future loss of the right in states where the courts or legislature have granted it. ---
**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 27, 2013, 3:09pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/134 "2013-03-27T15:09:06Z")
> [@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? It seems to me a no-standing decision here makes that course possible. Where is your concern over the tyranny of the minority? Here, we have 5 people deciding to enforce a law that their duly elected representatives have chosen not to enforce? And what kind of damage are these plaintiff’s suffering by allowing same sex couples to marry? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 27, 2013, 3:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/135 "2013-03-27T15:14:42Z")
> [@John\_Mace](#): > > But limited to CA, right? No automatic SSM for all the states. “Full faith and credit”. The Court couldn’t have taken these cases with the intent of punting. That can’t be the majority ruling. The real question is “How entertaining will Scalia’s cranial detonation be?” ---
**Author:** ![LawMonkey](https://avatars.discourse-cdn.com/v4/letter/l/d6d6ee/32.png) [@LawMonkey](https://boards.straightdope.com/u/LawMonkey)\ **Post date:** [March 27, 2013, 3:15pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/136 "2013-03-27T15:15:24Z")
> [@tim314](#): > > But whether there can be a rational basis for Proposition 8 _is_ a relevant question, and Justice Scalia was floating the hypothetical dangers of gay parents as a possible reason. (Never mind that that couldn’t have possibly been a basis of Prop 8, since same-sex adoptions are legal in California anyway.) This all came out of Justice Kagan’s line of questioning about whether there is any actual reason to exclude same-sex couples from marriage. Keep in mind that rational basis (as traditionally applied) is pretty damn weak sauce. It doesn’t really consider whether the underlying rationale is factually correct, except in perhaps the absolutely most general way–say, if a law was somehow underpinned by 2+2=5, that’d fail rational basis. So research regarding the suitability of homosexuals as parents isn’t as relevant as you might think. Note that the elevated rational basis that has been applied to matters of sexual orientation doesn’t necessarily follow this rule–but I’m not quite sure whether Scalia accepts that such a thing exists. Since nobody’s said it’s anything other than rational basis, I suspect he applies traditional rational basis rather than the “with teeth” version. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 27, 2013, 3:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/137 "2013-03-27T15:17:58Z")
But \*Romer \*established that this form of discrimination \*doesn’t \*pass the rational basis test. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [March 27, 2013, 3:31pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/138 "2013-03-27T15:31:36Z")
My totally uneducated guess: States rights + full faith and credit. Individual states can decide whether they want to allow same sex marriages licenses to be issued, but must accept such marriages of legally performed in other states. DOMA struck down, the US government must recognize same sex marraiges that were perfomed in states where it was legal. Proposition 8 is sustained, so same sex marriage remains officially illegal in California for now, but is probably restored by ballot initiative in the near future. Results in a defacto 50 state recognition of same sex marriage with the inconvenience that some couples may have to travel out of state to get the marriage performed. ---
**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 27, 2013, 3:48pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/139 "2013-03-27T15:48:16Z")
> [@LawMonkey](#): > > …I’m not quite sure whether Scalia accepts that such a thing exists. Since nobody’s said it’s anything other than rational basis, I suspect he applies traditional rational basis rather than the “with teeth” version. He quite explicitly doesn’t apply RBWB. Most of his dissent in Romer was complaining about how the Court was making up a new level of scrutiny. > [@ElvisL1ves](#): > > But \*Romer \*established that this form of discrimination \*doesn’t \*pass the rational basis test. On paper, yes, but Romer didn’t actually apply rational basis review. ---
**Author:** ![Saraya](https://avatars.discourse-cdn.com/v4/letter/s/b3f665/32.png) [@Saraya](https://boards.straightdope.com/u/Saraya)\ **Post date:** [March 27, 2013, 3:55pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/140 "2013-03-27T15:55:52Z")
Seems it’s (as always) about protecting ‘interests’ (for whatever those may be). SSM in 50 states would be a horrific decision by the SCOTUS. If they felt the public opinion of them was waning now, just wait till they unconstitutionally rule on what is primarily a moral matter first, political matter second. > [@The\_Second\_Stone](#): > > Scalia recently some remarks compared being gay to being a murderer in an analogy that he found both immoral. He’s an angry, homophobic asshole of the highest order and as long as he is demonizing gays by comparing them to murderers, I think it is obligatory to demonize him as a bigoted asshole. That said, perhaps his written remarks will hide is hatred better. > > So, no. Yes, cause clearly, retaliation is always the solution. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=6) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=8)