The armageddon clock has started (SCOTUS to address gay marriage)

Supreme Court agrees to rule on gay marriage.

And no matter which way it goes, someone will swear that it’s the end of civilization.

Personally, I’m all for them approving it. I’d love to see a few episodes of Gay Divorce Court.

Speculation time!

Based on Lawrence, Windsor, and Hollingsworth… well, it provides plenty of room for argument:

Lawrence v Texas, which struck down sodomy laws, had Kennedy, Breyer and Ginsburg on the Pro-gay side (Souter, Stevens, and O’Conner also, but they have retired), and Thomas and Scalia on the Anti-gay side (Rehnquist also, but he is likewise not on the court).

In Hollingsworth v Perry, striking down the CA ban on gay marriage, Roberts, Scalia, Ginsburg, Breyer, and Kagan voted for it, while Kennedy, Thomas, Alito, Sotomayor voted against it.

In United States v. Windsor, striking down DOMA, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan voted to overturn, while Roberts, Alito, Scalia, and Thomas voted to sustain.

Of course, legal arguments are more complex than “pro-gay” and “anti-gay”, but if we frame it that way, Breyer, Ginsburg, and Kagan have always been on the pro-gay side, Alito and Thomas have always been on the anti-gay side, and Roberts, Sotomayor, Kennedy, and Scalia (!) have been on either side of the case.

I would be unsurprised to see this case be an repeat of Windsor (using the Due Process Clause), and have it go 5-4.

I just hope the SC doesn’t get credit for freeing the [del]slaves [/del]gays. It’s been a long fight and we had to win, state by state. I also hope history doesn’t forget who opposed it, tooth and nail.

Does the US Constitution make any determination of marriage? Could they say that gay marriage is outside the Constitution and therefore rule to not rule?

As i understand it, the issue is not the constitutionality of any particular kind of marriage per se, but the equal treatment of all citizens under the law.

The writ of certiorari is limited to two specific questions:
[ol]
[li]Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?[/li][li]Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?[/li][/ol]

So if they said that the Constitution doesn’t make any determination about marriage, it would imply the answer to those questions is “no”.

Anyone want to start a “I think it will/think it won’t” pool? Poll style maybe?

Prior SCOTUS rulings on the subject have dealt with relatively tangential questions. This one, finally, cuts to the heart of the question, as discussed in the USA Today article linked by OP. The justices have to show their hands now.

Given the reactionary temperaments of the court majority in recent years, I’m not optimistic that this is a good time for this case to come up.

We can do that here. Unless someone specifically wants a poll. Too late to add that to this thread I’m afraid. I started this thread to get peoples opinions on how it should go/how it will go. Go wild.

I’m down for they will not leaving it up to the states.

(My choice would be otherwise but I don’t think this Court has it in it to nationalize something even if it should be that way)

I wish they would. It’s way past time.

Not holding my breath, however.

A related question is what happens to existing SSMs if the laws are upheld? Are they invalidated?

That would be hell for a state like California. The ruling would resurrect Prop 8. If nothing else, it would make for an interesting Modern Family episode where Mitch and Cam are no longer married.

Of course, nobody knows how the Court (read: Kennedy) will rule, but with his strong federalism ties, I am having a difficult time seeing how someone with his judicial temperament wants to write such a sweeping opinion finding a new substantive due process right and redefining marriage for all 50 states. Maybe he will, but I’ll bet he is struggling with it.

I don’t think anything regarding the new case bears on the finding of Hollingworth, so I don’t see how it would resurrect Prop 8. (And as a practical matter, I can’t imagine the Court would want to reverse itself just two years after its first ruling on the issue).

The question is whether SSM in other states, where it was never legal prior to Windor, should continue.

I suspect they’ll (and by “they”, I mean “Kennedy”) will find that it will. His writings in Windsor seemed to be leaning in that direction.

Everyone says that it’s Kennedy who is the swing vote.

This case could set a new record for the number of amicus curiae briefs filed.

If the Supremes rule against gay marriage now–that is, if they rule that it’s a matter for each state to decide–then why the hell didn’t they step in and do something last Fall instead of letting gay marriage bans be struck down in federal courts in at least a dozen states? An anti-SSM ruling now would cause an enormous amount of legal and practical confusion. (Would all those same-sex couples who have run out and gotten hitched in Utah and Oklahoma and South Carolina still be married or not?)

One of the most basic principles of law is that it be certain and settled and predictable. Not, “That’s illegal!” "No, it’s legal! “Oh, wait, no it is illegal!”

The finding in Hollingworth was that the parties had no standing to pursue the appeal, so the 9th circuit (and district court) decision stood by default. It did not decide the case on the merits.

If this case decides that a state may prohibit same sex marriage consistent with the constitution, then the underlying decision in Hollingworth was wrongfully decided, Prop 8 is constitutional and in effect.

But anyways, if Kennedy writes the opinion to strike down anti-SSM laws, he will likely go the old animus route. I think he will have a much tougher time here.

It’s at least arguable to see how the law in Romer was a direct attempt to screw homosexuals out of democratic gains that had been made and a result of animus. It is also arguable that DOMA was enacted out of animus because it attempted to stop any gains made by same sex couples at the state level.

But could he say with a straight face that continuing a state law which is consistent with the common law of England and all other societies since the code of Hammurabi is done purely out of animus? IOW, are states under an affirmative duty to change their common law when a sufficient number of the left decrees that it should be changed?

I don’t mean to start SSM Wars 25 here, but I hope one can see the distinction I am making between a possible animus ruling in this case and how it differs from the other cases where animus was found.

Missed edit: But as I am thinking, is there a possibility of a split decision? Could Kennedy go the Romer route and say that a state may pass a law against SSM, but may not amend its constitution to require a higher hurdle for gay couples to cross?

So, Prop 8 struck down, SSM legal in California. All other states have their state constitutional amendments struck down that forbid SSM. States may pass laws against SSM, but gay couples only need to convince the legislature to change the law, not repeal an amendment.

Sounds more like a Kennedy opinion to me.

I don’t think that would make any sense. If it’s constitutional for a state to pass a law forbidding same sex marriage, why wouldn’t it be constitutional for a state to have a constitutional ban on same sex marriage?

IIRC the underlying ruling was based on the CA constitution, so I dont think it would be affected by this new case.

That was true for an earlier proposition that made SSM marriage illegal in California, but didn’t amend the state Constitution. It was struck down in state courts, and led to Prop 8. The federal ruling against Prop 8 only conserved U.S. Constitutional issues.

What happens now in the 5th Circuit will be interesting. They appeared to be leaning towards overturning bans. Will they go ahead with a ruling now, or defer?