# 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:** 8
**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, 3:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/141 "2013-03-27T15:59:02Z")
> [@Saraya](#): > > If it’s about protecting ‘interests’ (for whatever those may be), then 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 mater first, political matter second. By all means, please expound. ---
**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, 3:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/142 "2013-03-27T15:59:40Z")
> [@Saraya](#): > > If it’s about protecting ‘interests’ (for whatever those may be) And \*whatever \*may those be? > [@](#): > > a moral mater first, political matter second. The rights in question are Constitutional, and the effects are quite practical. Where is morality part of it? ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [March 27, 2013, 4:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/143 "2013-03-27T16:27:31Z")
People may want to review what the question before the court is. > [@](#): > > Whether the Equal Protection Clause of the > Fourteenth Amendment prohibits the State of Cali- > fornia from defining marriage as the union of a man > and a woman. That is the question which will be answered (or ducked), unless this is an exceptional decision by the court. After listening to the arguments twice I think Prop 8 is dead, The question I have is how narrowly the ruling will apply and how they will limit the scope. If I had to guess I would hazard to guess that they will say that because of civil unions/adoption laws in California demonstrate that the claimed states interest is false and that it was purely a punitive law as in Romer v Evens. Thus no SSM in all 50 states, just SSM in states which legislated de facto SSM by “any other name” doctrine. But there may be a bit of confirmation bias in my assessment. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 27, 2013, 5:07pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/144 "2013-03-27T17:07:00Z")
> [@Smapti](#): > > 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. Wrong. The Girandoni rifle was invented in 1779. It had a 20 round magazine (22 rounds total) that fed rounds from the rear of the rifle and was in service with the Austrian army in 1780. just sayin’ ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [March 27, 2013, 5:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/145 "2013-03-27T17:12:24Z")
I think both cases are going to be decided in favor of equality, with Roberts writing the majority opinion. ---
**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, 5:13pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/146 "2013-03-27T17:13:42Z")
> [@Hamlet](#): > > 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? I’m not sure that signifies, since the law itself was directly passed by the voters. As to the standing issue, injury is only required for a plaintiff to assert standing. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [March 27, 2013, 5:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/147 "2013-03-27T17:17:29Z")
> [@doorhinge](#): > > Wrong. The Girandoni rifle was invented in 1779. It had a 20 round magazine (22 rounds total) that fed rounds from the rear of the rifle and was in service with the Austrian army in 1780. just sayin’ To be fair Smapti did say “firearm” which the Girandoni is not. The internet vs. the printing press would have probably been a better example. The “freedom of the press” or the right to publish is not restricted to just the “press” despite the fact it is called out by name in the 1st. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [March 27, 2013, 5:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/148 "2013-03-27T17:17:42Z")
DOMA is dead 6-3. Prop 8 is dead 5-4 or 6-3 but SSM is reinstated in CA and doesn’t apply to the rest of the States even in the 9th. Standing is not an issue in either. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 27, 2013, 5:18pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/149 "2013-03-27T17:18:51Z")
> [@tim314](#): > > \*\*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. > > 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. No. That’s “your” interpretation of what you think Scalia meant to say. “Takes no position” means he’s not personally taking a position on that particular issue. Considering all of the questions being asked by the Justices, I think it’s obvious that the Justices have discussed this particular issue in closed chambers prior to this hearing and Scalia and the other Justices have been at odds over it. Scalia was asking the lawyers to clarify their positions. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [March 27, 2013, 5:19pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/150 "2013-03-27T17:19:10Z")
> [@doorhinge](#): > > Wrong. The Girandoni rifle was invented in 1779. It had a 20 round magazine (22 rounds total) that fed rounds from the rear of the rifle and was in service with the Austrian army in 1780. just sayin’ It’s also an airgun with a dodgy reservoir. Just sayin’. ---
**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 27, 2013, 5:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/151 "2013-03-27T17:27:02Z")
I wish someone would ask the question, “So if Scienticians were able to prove beyond the shadow of doubt that same sex couples raise healthy, well-adjusted children at exactly the same rate as heterosexual couples, then preventing SSM would not have any state interest, correct? What if studies actually showed heterosexual couples had a higher rate of fucked up children, then what?? Suppose science found something else, such as couples where there is more than a foot difference in height increased the odds of fucking up your children, would that then make a legitimate state interest to outlaw such unions? Please, tell me why you are basing your whole argument on a temple of lies?” ---
**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, 5:30pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/152 "2013-03-27T17:30:39Z")
The problem with that argument is that the “rational” in rational basis doesn’t mean the legislation must be rational; just rationally related to the interest. The legislature is free to ignore prevailing evidence just as long as there is _some_ to support its purpose. ---
**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, 5:32pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/153 "2013-03-27T17:32:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I’m not sure that signifies, since the law itself was directly passed by the voters. Since Prop 8 was passed, the people of California elected Kamala Harris to represent them as Attorney General, and she refuses to defend Prop 8 against constitutional attacks. Why do the voters in 2008 trump the voters in 2010? Note: my point is more about the emptiness of the “what about the right of the people to govern themselves and protection from the tyranny of the minority (Supreme Court Justices)” rhetoric than a determination on the standing issue. > [@RNATB](#): > > As to the standing issue, injury is only required for a plaintiff to assert standing. Right. And what legally cognizable injury do the plaintiff’s have in this case? I had never really heard Bricker praise finding standing for taxpayers or people who wish to sue to have laws enforced (like some environmental group suing the EPA on behalf of publicly owned lands.) Personally, I’d be surprised if yesterday’s case was bounced on a standing issue, but it would be an interesting legal opinion. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 27, 2013, 5:36pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/154 "2013-03-27T17:36:56Z")
> [@rat\_avatar](#): > > To be fair Smapti did say “firearm” which the Girandoni is not. The internet vs. the printing press would have probably been a better example. The “freedom of the press” or the right to publish is not restricted to just the “press” despite the fact it is called out by name in the 1st. The referrence was to the 2nd Amendment and the 2nd doesn’t mention the word “firearms”. Since this is the law we’re talking about, the actual wording, standing, and previous rulings matter. Several Justices used the limited time allotted for this final public hearing to discuss standing. I take that to mean that the Justices have questions AMONG THEMSELVES as to whether the SCOTUS should be hearing this case. The State of California didn’t defend Prop 8 but the State of California didn’t file suit against it, on any grounds, either. The Govenor may say that a legal and lawful ballot proposition and state constitutional amendment is unconstitutional but it’s obvious that the governor didn’t back up his opinion with legal action. ---
**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, 5:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/155 "2013-03-27T17:41:38Z")
> [@Hamlet](#): > > Right. And what legally cognizable injury do the plaintiff’s have in this case? 😕 The plaintiffs in the Prop 8 case (Perry et al.) are the gay people who couldn’t get married (and the City of San Francisco). The plaintiff in the DOMA case is Edith Windsor, who had a same-sex marriage in Canada but was required to pay federal estate taxes because her marriage was not recognized. Are you under the impression that the State of California and/or the federal government are the plaintiff? ---
**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, 5:42pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/156 "2013-03-27T17:42:10Z")
> [@doorhinge](#): > > The referrence was to the 2nd Amendment and the 2nd doesn’t mention the word “firearms”. [QUOTE=Wikipedia] While the detachable air reservoir was capable of around 30 shots it took nearly 1500 strokes of a hand pump to fill those reservoirs. [/QUOTE] I hereby amend my original statement to say that I am fully OK with the type of people who frequent NRA rallies carrying around weapons that take 1500 strokes of a hand pump to discharge a single magazine. ---
**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, 5:42pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/157 "2013-03-27T17:42:15Z")
> [@ElvisL1ves](#): > > The real question is “How entertaining will Scalia’s cranial detonation be?” Not nearly as entertaining as the wailing and gnashing of teeth on this MB about him! ---
**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, 5:44pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/158 "2013-03-27T17:44:24Z")
> [@Hamlet](#): > > 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? Duly elected representatives are presumed to express the will of the majority – except when the majority has already spoken specifically on a particular issue. In that case, the specific overrules the general. I have no idea what “plaintiffs” you’re talking about. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [March 27, 2013, 5:47pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/159 "2013-03-27T17:47:41Z")
> [@doorhinge](#): > > The referrence was to the 2nd Amendment and the 2nd doesn’t mention the word “firearms”. No, but the post you were responding to did, but if you have any case law that shows that laws restricting firearm ownership have been invalidated due to existing technology in other types of projectile weapons you may have a point. If you are going to stick to the “it must have existed at the time” argument is the government free to restrict the publishing of ideas on the internet or via laser printer? Should people be required to use a physical printing press to print to publish ideas? But if you have any case law to show that the reason the 2nd applies to repeating cartridge firearms is related to the existence of a repeating air rifle I will gladly accept a cite. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 27, 2013, 5:49pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/160 "2013-03-27T17:49:04Z")
> [@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. Do you believe that is why Scalia repeatedly asked about “when” SSM had become illegal? Would he have been looking for clarification as relating to Romer v. Evans? [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=7) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=9)