# 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:** 9
**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, 5:50pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/161 "2013-03-27T17:50:18Z")
> [@doorhinge](#): > > No. That’s “your” interpretation of what you think Scalia meant to say. I think it’s an absolutely fair characterization of what he said. Here’s the part of my post you bolded, one more time: **“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.”** Here’s what Scalia said: > [@Justice Scalia](#): > > If you redefine 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. I don’t think we know the answer to that. > [@Justice Scalia](#): > > They’re arguing for a nationwide rule which applies to States other than California, that every State must allow marriage by same-sex couples. And so even though States that believe it is harmful – and I take no position on whether it’s harmful or not, but it is certainly true that – that there’s no scientific answer to that question at this point in time. I don’t see any reasonable reading for that which isn’t consistent with “I’m not saying gays are unfit to be parents, but they _might_ be.” And he suggested this specifically as an argument that the lawyer, Mr. Cooper, could have used in response to Justice Kagan’s line of questioning about whether there was any reason for not allowing same-sex couples to marry. My speculation that he is aware of the research which shows same-sex parents do just as well as opposite-sex parents, but is choosing to ignore it, is of course my own speculation. Although I can’t see how he could _not_ be aware of it. But I think my characterization of what he actually said is pretty indisputable. ---
**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, 5:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/162 "2013-03-27T17:53:14Z")
Well, the idea that something might be true is a perfectly valid reason for discrimination is pretty disgusting. ---
**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, 6:01pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/163 "2013-03-27T18:01:55Z")
Transcript of the DOMA argument: [http://www.supremecourt.gov/oral\_arguments/argument\_transcripts/12-307\_jnt1.pdf](http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307_jnt1.pdf) (PDF) Audio: [http://www.supremecourt.gov/oral\_arguments/argument\_audio\_detail.aspx?argument=12-307](http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-307) ---
**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, 6:14pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/164 "2013-03-27T18:14:04Z")
> [@tim314](#): > > …I don’t see any reasonable reading for that which isn’t consistent with “I’m not saying gays are unfit to be parents, but they _might_ be.” And he suggested this specifically as an argument that the lawyer, Mr. Cooper, could have used in response to Justice Kagan’s line of questioning about whether there was any reason for not allowing same-sex couples to marry. > > My speculation that he is aware of the research which shows same-sex parents do just as well as opposite-sex parents, but is choosing to ignore it, is of course my own speculation. Although I can’t see how he could _not_ be aware of it. But I think my characterization of what he actually said is pretty indisputable. Your speculation is indisputable to you. All of the Justices were asking questions to help them decide how they should rule on the specific questions before the court. You seem to object to “how” the Justices, Scalia in particular, phrased their questions. Scalia joined Kagen in seeking a direct (more direct?) answer from Cooper. You can read anything into Scalia’s wording that you wish but that doesn’t make your “speculation” indisputable. It’s just makes it your speculation. ---
**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, 6:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/165 "2013-03-27T18:17:30Z")
Most SCOTUS watchers will caution the casual observer against reading too much into any given justice’s questions. ---
**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, 6:20pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/166 "2013-03-27T18:20:18Z")
> [@rat\_avatar](#): > > 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. My point was that “Smapti” provided a poor/incorrect example in relation to the topic of this thread. ---
**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, 6:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/167 "2013-03-27T18:35:22Z")
> [@John\_Mace](#): > > **Most SCOTUS watchers will caution the casual observer against reading too much into any given justice’s questions**. Thanks, that’s something that needs to be said. I believe it’s the misunderstanding by the media and public that the Justice’s questions are simply random questions instead of the fact that they are related to some issue that has already been discussed by the Justices. The questions may be related to issues raised in amicus curiae, the appellate court, the original case file, possible related cases, or SCOTUS closed door sessions. The Justices are phrasing their questions to elicit a more thoughtful or direct response from the lawyers before them. The Justices already know what has been presented prior to this public hearing. ---
**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, 6:39pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/168 "2013-03-27T18:39:40Z")
> [@doorhinge](#): > > Your speculation is indisputable to you. All of the Justices were asking questions to help them decide how they should rule on the specific questions before the court. You seem to object to “how” the Justices, Scalia in particular, phrased their questions. Scalia joined Kagen in seeking a direct (more direct?) answer from Cooper. You can read anything into Scalia’s wording that you wish but that doesn’t make your “speculation” indisputable. It’s just makes it your speculation. What are you responding to? I didn’t say “my speculation is indisputable”. I said that my characterization of what Scalia said is indisputable. I’m referring to this part of my post, which you bolded in your response: **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.”** Do you dispute that that’s an accurate paraphrase of what Scalia said? My speculation, which I have never claimed was indisputable, was the part of my post where I suggest that Scalia knows about the research that says same-sex couples are as good parents as anyone else, and chooses to ignore it. ---
**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, 6:45pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/169 "2013-03-27T18:45:18Z")
So which is the correct paraphrase, “I’m not saying gays are unfit to be parents, but they might be, and if they are, that’s a reason for not allowing them to marry.” or “I’m not saying gays are unfit to be parents, but they might be, and since they might be that’s a reason for not allowing them to marry.” ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/170 "2013-03-27T18:51:13Z")
> [@Gangster\_Octopus](#): > > So which is the correct paraphrase, > > “I’m not saying gays are unfit to be parents, but they might be, and if they are, that’s a reason for not allowing them to marry.” > > or > > “I’m not saying gays are unfit to be parents, but they might be, and since they might be that’s a reason for not allowing them to marry.” The second one. He’s not saying “If it is proven in the future that gays are unfit parents, then you can deny them the right to marry”. He’s saying “Since it hasn’t been proven yet that gays are _not_ unfit parents” – and I don’t agree with Scalia’s claim that this hasn’t been proven – " you can deny them the right 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, 7:02pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/171 "2013-03-27T19:02:16Z")
IOW, he’s just JAQ’ing. ---
**Author:** ![sachertorte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sachertorte/32/3727_2.png) [@sachertorte](https://boards.straightdope.com/u/sachertorte)\ **Post date:** [March 27, 2013, 7:05pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/172 "2013-03-27T19:05:34Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 😕 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? That confused my husband too. (The only reason I wasn’t ‘confused’ is because I’m too ignorant to have even thought it though). Anyway, hubby was confused because while it makes sense that the pro-gay side looks like the plaintiffs – they are not. The plaintiffs in the Prop 8 case are the pro-Prop8 people. I guess the reason is because they are the ones appealing? Anyway, this whole thing confused hubby because all the gnashing of teeth about standing. He was all, WTF? Of course the couples would have standing. He knows (and I didn’t) that standing only matters for the plaintiff. And the only group that could have questionable standing is the pro-Prop8 side. So he was confused too. The answer is that the pro-Prop8 people are the plaintiffs. For DOMA, I assume the same reasoning holds. There was quite a bit of questioning regarding standing again, so I guess that means the pro-DOMA side is the plaintiff. My WAG is that it is because they are appealing the lower rulings against DOMA. ---
**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, 7:07pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/173 "2013-03-27T19:07:44Z")
> [@Oakminster](#): > > I think both cases are going to be decided in favor of equality, with Roberts writing the majority opinion. My thinking too - he showed in the Obamacare decision that he really does have an eye on how history will perceive his Court, and he may well be hungry for more. “Is Roberts going to be the new Earl Warren?” is another thread topic, but already there are hints, there are hints. ---
**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, 7:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/174 "2013-03-27T19:12:59Z")
What does it mean to rule “in favor of equality”? If they decide that prop 8 is dead and DOMA goes the way of the dodo, but that does not mean SSM from sea to shining sea, is that a ruling “in favor of equality”? ---
**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, 7:15pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/175 "2013-03-27T19:15:34Z")
It \*would \*necessarily mean nationwide equality. ---
**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, 7:17pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/176 "2013-03-27T19:17:20Z")
> [@ElvisL1ves](#): > > It \*would \*necessarily mean nationwide equality. That’s my point. I don’t think **Oak** meant that, but maybe he did. Care to clarify, **Oak**? ---
**Author:** ![drewtwo99](https://avatars.discourse-cdn.com/v4/letter/d/d07c76/32.png) [@drewtwo99](https://boards.straightdope.com/u/drewtwo99)\ **Post date:** [March 27, 2013, 7:18pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/177 "2013-03-27T19:18:25Z")
Is it likely that the court will overturn DOMA entirely, including the part that says states don’t have to recognize SSM performed in other states, or just the part that says the federal government doesn’t recognize SSM (for tax purposes and such)? If the prop 8 ruling comes out limiting SSM rights to just California, but all of DOMA is overturned… then essentially SSM will be recognized everywhere, but only performed in a handful of states. Is this a likely or possible outcome? If so, that’s definitely what I would call an outcome for “equality” even if all of the 50 states are not required to allow SSM to be performed within their own borders. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [March 27, 2013, 7:18pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/178 "2013-03-27T19:18:42Z")
> [@John\_Mace](#): > > What does it mean to rule “in favor of equality”? > > If they decide that prop 8 is dead and DOMA goes the way of the dodo, but that does not mean SSM from sea to shining sea, is that a ruling “in favor of equality”? Yes, because it clears the way for a future case that will make marriage equality the law across the country. If DOMA is dropped (even if only Section 3 is dropped), you have a case where a couple who lived in NY and married there, then moved to PA, has federal marriage benefits in a state that doesn’t recognize their marriage. That’s most likely untenable (although IANAL) and it seems to me that it provides a much better test case against Section 2 of DOMA (which is the section that abrogates Full Faith & Credit in cases of SSM). Incremental equality is still equality. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [March 27, 2013, 7:18pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/179 "2013-03-27T19:18:57Z")
**Elvis** -Saw somewhere someone saying he wants to remembered as Earl Warren, not Roger Taney. ---
**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, 7:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/180 "2013-03-27T19:24:32Z")
> [@jayjay](#): > > Yes, because it clears the way for a future case that will make marriage equality the law across the country. If DOMA is dropped (even if only Section 3 is dropped), you have a case where a couple who lived in NY and married there, then moved to PA, has federal marriage benefits in a state that doesn’t recognize their marriage. That’s most likely untenable (although IANAL) and it seems to me that it provides a much better test case against Section 2 of DOMA (which is the section that abrogates Full Faith & Credit in cases of SSM). > > Incremental equality is still equality. Again, this demonstrates my point. I think different people are using that phrase to mean different things, and so it’s best to clarify what we mean rather than to keep using it. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=8) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=10)