I have done some more reading on this and it’s possible that one or two more Justices voted with the them but didn’t choose to make it public.
The main takeaway here is that somewhere between five and seven Justices did not vote to keep the stay which bodes very well for the final decision although it’s not totally in the bag. They could have voted how they did because it is settled law in their Circuits for now.
It’s certain groups of people who turn out to vote in numbers disproportionate to their percentage of the population.
Hard-core social conservative anti-SSM types campaign for, contribute financially to, and vote for politicians who promise to uphold bans on same-sex marriage. The politicians have little to no incentive to turn their backs on these votes and these campaign contributions. “The government” gains nothing from supporting or denying SSM, but politicians do.
Indeed, and that’s to their credit. Of course this group of people were a majority of liberals as recently as 2008 when both Hillary and Obama also firmly believed that marriage is only defined as between one man and one woman. Like with the liberal politicians, the views of the conservative ones will also “evolve” right along with their constituencies.
If I had to guess (and it is a WAG), it would be that Kennedy has not made his thoughts known even to his fellow justices. As such, none were actively pushing for a resolution.
So most Justices followed the “no circuit split so we will leave it alone” traditional rule. They also declined to issue stays in those Circuits. Of the four Justices who are known to oppose SSM, Roberts and Alito follow the “traditional judicial restraint” rule and are not issuing stays to states in circuits that have ruled. Scalia and Thomas see the difficulty of reversing the rulings and want the Court to speak now.
I think this all goes out the window when they decide whether to hear the Sixth Circuit appeal. They almost must speak now.
I agree with your WAG.
Of the four States in the 6th, two of the pro-SSM sides have already submitted their appeals to SCOTUS. All of the pro-SSM sides have agreed to skip the en banc and go straight to SCOTUS. The other two will by Monday or Tuesday. The Court, of course, can decide to hear none, some or all of them. They can be combined or heard separately. This all makes for some interesting theater since each case is different in some ways. I believe one of them only deals with other state marriages being recognized. The next SCOTUS conference is in mid-December which is why time is of the essence. The other side needs a reasonable amount of time for a response. I think that it’s safe to say that we will have a final resolution to this in June.
Can it be done without oral arguments or are we looking at a media frenzy?
Don’t think you can avoid that.
It’s disingenuous to suggest that the position of Obama on gay marriage circa 2008 is the same as the position of, say, Rick Santorum, then or now.
Yes it is and that wasn’t what I was doing.
I don’t think the SSM v. recognizing SSM performed in other states distinction will matter. I can’t fathom a ruling that would hold that states are free to prohibit SSM but must recognize those performed in another state. Possibly a FF&C argument, but that would overturn a couple centuries of FF&C precedent.
If Kennedy does side with the “four horseman” there are many other issues to sort through. What happens to SSM in states that were forced to legalize it due to lower court rulings? Especially in states like SC or KS that fought until the end. Will the legality of SSM be different in a state like KS who fought it bitterly, than say WV, who acceded to the Fourth Circuit once SCOTUS denied the stays?
What about California? Such a ruling would revitalize Prop 8 and put it back into effect. Or would it? What about Iowa? Would such a ruling on the federal due process and equal protection clauses cause state courts to reexamine those clauses in their own constitutions?
Will it be prospective or will all SSMs in those states be void ab initio? If void, will those couples be forced to redo their income taxes and pay back the marriage benefits?
Would there be a distinction between state laws prohibiting SSM and constitutional amendments prohibiting SSM? Kennedy ruled in Romer that he didn’t like constitutional amendments aimed at gays because it made them jump through extra hurdles. Could we see those struck down, but only the state laws remain?
It’s a morass. People have been asking the Court to rule on this issue since Baker. It should have put an end to this long ago.
Sheesh. We already got to redo them for 3 years back refunds, so it’s hard to imagine we’d have to un-redo them.
The SSM proponents from MI and KY have asked SCOTUS for review so now the 6th is complete. The States have a month to reply which, if they take all of the time, puts them out of the window for the 12/10 conference but with plenty of time for the two conferences in January. That means that we will almost certainly see this resolved in this term.
With this issue, the response brief should only take about 20 minutes. The secretaries will spend more time assembling the packets. Cut and paste is one’s friend and the arguments, both on this board and in the legal community, have been hammered to death.
I don’t believe that there is any hope of convincing either side: It is simply a matter of one’s own judicial philosophy about the limits of the scope of the 14th amendment regarding who is a protected class. Supporters see these laws as nothing but discrimination, no different than bans on miscegenation. Opponents see the laws as prevalent since the founding and nearly absurd to say that same sex marriage is a fundamental right because of text written in 1868. Neither side will change.
Yes but the many on the other side are into obstruction. I can see them taking up every bit of available time and asking for extensions to see if they can push it out a year.
Not in the next several months anyway. The four liberals and Kennedy all just have to stay alive until June.
Just out of curiosity, what else do you base on 1868 understandings of equality?
I guess if you are an attorney representing the State of Ohio, it would be in your client’s best interests to push it out until next term. The state has the result it wants and pushing the issue would only invite the possibility of the client’s harm.
But if you are an attorney representing South Carolina in an absolutely identical matter, you want the Supremes to possibly overturn the Fourth Circuit.
I wonder if there are any attorneys working on many of these cases that now have conflicting interests.
At the risk of starting this debate again which has been horsewhipped to death in other threads, my view is simple: If one is claiming a right to do a particular thing or living a certain way, or anything and cites the 14th amendment of the source of that right, then one must look, among other things, at the context in which it was enacted. Basic rules of construction tell you to first look at the plain text. It talks of “equal protection” and “due process.”
These are vague terms that cannot be taken literally. One cannot claim that as a person who wishes to drive his car too fast that speeding laws treat him differently than one who always drives his car slowly and therefore he is deprived of “equal protection” of the laws. Ever single law would be invalid under the literal text.
So, next we move to the intent of the drafters of the words. I don’t know why this is controversial. It’s done all of the time in interpreting statutes and the terms of a contract.
Suppose I am a party planner who was under a yearly contract drafted in 1952 and one of the clauses state that I am to “provide all guests with a gay time at the event.”
Obviously the text is ambiguous as it doesn’t specify what a “gay time” is. So the next step is to go back to the drafters. Then you see “Ah, they mean that the guests should be happy at the parties.” Construction over.
Where this language legitimately evolves what it means for guests to be happy. Maybe in 1952, I served cigars and brandy, had cigarettes in bowls on the coffee table, and since the group was mostly men, I provided escorts. In 2014, it would likely mean dance music, a wide selection of drinks, a smoke-free environment, and Wi-Fi access. (Likewise the 4th amendment applies to a cell phone, even though cell phones were not contemplated in 1789).
Where evolution of terms is improper, IMHO, is where it seems as if the left would argue that, although drafted in 1952, the words should change meaning so that all guests engage in homosexual sodomy.
I realize my analogy is imperfect, but my means of constructing the terms does justice to the 2/3s of each House of Congress and the 3/4 of the states who agreed to it. The other side simply amends the constitution without going through the process.
I’m asking for very specific examples of things that you don’t recognize as rights because they run afoul of understandings in 1868. Which currently recognized rights shouldn’t have been on the table because of the text of the 14th Amendment and the understandings of the time?
We can now add MT to the list. Since the judge didn’t stay his decision and MT doesn’t have a wait between the issuance of the license and when the wedding can take place, marriages can begin immediately. In fact, MT is a common law state so I think that a bunch of couples just became instantly married.
SC is still going through the motions. The stay ends tomorrow and the Circuit Court refused to extend the stay. The proponents can appeal to SCOTUS but that will extend the stay for an extra day or two on the outside.
KS is interesting. The AG is claiming that the SCOTUS decision only applied to the counties where parties to the lawsuit live so they are issuing licenses in some counties but not others until some more legal wrangling happens.
Once all of those are over and done, we will finally be at the 35 States that came from SCOTUS denying cert a few weeks back.
MS is another weird one. The two counties in the St Louis area and one other are giving out SSM licenses and they recognize out of state marriages so anyone can go to St Louis or one of the legal states and be married anywhere in the State. It’s effectively, but not officially legal there too.
Do you mean MO? I’m assuming so, but I haven’t been paying a huge amount of attention.