This poll is to predict what you think the U.S. Supreme Court’s decision will be in Obergefell v. Hodges (gay marriage).
Note that–at least for voting in the poll part of the thread–I’m not asking what you think the decision ought to be (“It should be 9-0 in favor of equal rights!” “It should be 9-0 re-affirming our Judeo-Christian heritage of one-man, one-woman marriage!”); rather, what you think the decision will be (“That flip-flopper Anthony Kennedy will never commit to recognizing true equality!” “The godless liberal Secular Humanist bloc will vote to destroy Biblical marriage by a 5-4 vote!”)
I’m also assuming that SCOTUS won’t issue a split decision (states don’t have to perform same-sex marriages, but do have to recognize same sex marriages performed elsewhere). I’ll put in one option for that, but I’m not going to try to cover all the options on that, because this will be a fairly unwieldy poll as it is.
I voted 6-3 in favor; I think that not only Kennedy but Roberts will vote for SSM. I predict this about Roberts for several reasons:
[ol]
[li]By all accounts, Roberts is concerned about his “legacy” and about upholding the reputation of the court as an institution, and I don’t think he will want to be on the wrong side of history[/li][li]Voting with the majority will allow him more control of the decision (either writing it himself or choosing who else writes it.)[/li][li]Voting against SSM now will be a blow not only against equal rights, but also against the integrity of the legal process–if the Supreme Court is ultimately going to rule against SSM, they never should have allowed multiple lower federal courts to strike down bans against gay marriage last fall. (The Supremes could have stayed those decisions, but they didn’t.) To turn around and rule against SSM now would put marriages performed in (by my quick count) 18 states in some kind of bizarre legal limbo.[/li][/ol]
I went for 5-4 (with 6-3 my pick for runner-up as most likely) mainly because I’m not sure Kennedy’s going to side with the liberal bloc. If he doesn’t, I suspect Roberts will join them for MEBuckner’s reason #3.
6-3. Scalia, Thomas, and Alito will continue to try to repeal the 21st century (and the 20th, and much of the 19th) but to no avail. Kennedy will not be able to find a way to backtrack from his DOMA opinion even if he wants to, and yes, Roberts will be more persuaded by logic than partisan hatred. Notorious RBG has happily been performing SSM’s for some time now, if you need a hint.
Yeah, the “9-0” options (on both ends) were just for the sake of being obsessively completist. I’ll be pretty stunned if the result isn’t somewhere in the “6-3 for” to “4-5 against” range.
Sure, but she’s been performing them in states where it is legal. That is not necessarily an indication that she thinks the federal constitution requires that it be legal (though I’m sure she does.)
I’ve not kept track of whether she has performed SSM’s in states only where it is legal by legislative action as opposed to legal due to court order. Anyone know?
Seems to me that if she officiates a SSM where the state has approved those by legislative action then that is not tipping her hand.
However if she officiates SSM where a state’s law or state constitutional ban on SSM has been overruled by a lower court then perhaps she is providing a not-so-subtle hint.
I may be one of the few to think the SCOTUS will split the baby - require recognition of SSM performed in other states but permit states to refuse to issue marriage licenses for SSM within the state.
As far as I can tell, Ginsburg has only done two and they were both within the boundaries of DC (where it’s been legal since early 2010.)
I think it’s possible they’ll split the baby, but unlikely. The briefs barely mention the FF&C issue. They’re all focused on equal protection and fundamental rights arguments.
I tend to agree with you. I think Kennedy is struggling with a fundamental rights and federalism argument. I could see him using a federalism argument that states are not required to issue SSM licenses because domestic relations laws are state functions and also distinguish Romer and Windsor insofar as state laws against SSM are not animus as they have existed for thousands of years. State constitutional amendments against it are gone for Romer reasons.
BUT, freedom to travel, 14th amendment privileges or immunities that states may not differentiate between their own citizens, dignity of the couple, etc. requires states to allow those legally wed in other states to keep that status when moving around the country.
Roberts may get on board with that and write the opinion with Kennedy holding the pen. The liberal four concur but write separately to hold that they would find a due process right to SSM. Scalia writes a blistering dissent (even by his standards, and even after he states that he will not “swell the United States Reports” with his prior thoughts on the subject) joined by Thomas, with Alito joining to all except part III where Scalia denounces homosexuality as the end of civilization. Thomas writes a three paragraph dissent stating that every decision that the Court has made since 1811 is incorrect and should be reexamined.
Could be any Monday in June. The court’s calendar shows Mondays are the only day of the week they plan to issued decisions. The court’s current term ends the end of June.
Truly major decisions often go down the the wire, so later in the month is presumed for PPACA and SSM cases.
