Predict how SCOTUS rules on gay marriage

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Well?

[Fmr President & Senator Polnut]

My view is that the Prop 8 ruling will be EXTREMELY narrow and only apply to California and they'll overturn DOMA.

[True Federalist (진정한 연방 주의자)]

Options 2 and 4 are impossible.  I just do not see any valid way DOMA could be overturned without finding that same-sex marriage is a right. The pseudo-federalist argument that the Federal government must be bound by each State's definition of marriage contradicts tons of precedent on a wide range of issues well beyond marriage or even civil rights. If DOMA is struck down, then all bans against same-sex marriage will be stuck down nationwide.

Beyond the options in the poll, there is one more to consider (well two more if you think it is possible to strike DOMA while not having nationwide same-sex marriage).  Beyond just California, I can see the court issuing a ruling in the Prop 8 case that turns all civil unions that are marriages in everything but name into marriages and strikes down the concept of separate-but-equal in that field of law without requiring that states allow same-sex marriage. Indeed in the Prop 8 case, right now I think that is the most likely ruling.  I'm uncertain whether the court upholds or strikes DOMA.  I'm going to guess it upholds it 5-4, but it being overturned with a 5-4 or a 6-3 ruling would not surprise me.  If Kennedy votes to strike, I think that Roberts will do his darnedest to find a justification to go along with the majority to avoid having same-sex marriage bans struck down narrowly.

[SteveRogers]

Options 2 and 4 are impossible.  I just do not see any valid way DOMA could be overturned without finding that same-sex marriage is a right. The pseudo-federalist argument that the Federal government must be bound by each State's definition of marriage contradicts tons of precedent on a wide range of issues well beyond marriage or even civil rights. If DOMA is struck down, then all bans against same-sex marriage will be stuck down nationwide.

The key distinction here is that the federal government currently doesn't marry anyone. They leave it up to the states to grant marriage licenses. That puts the federal government in a very awkward situation equal protection-wise when they start granting federal benefits to some legally married couples in Massachusetts but not others. The court doesn't necessarily have to find a fundamental right to marriage in order to strike down DOMA on equal protection grounds. 

Of course yes, once you've made that argument the next logical step is to say that the states can't provide marriage rights to one set of couples but deny giving them to another. Whether this court will be ready to take that step remains to be seen.

[Oldiesfreak1854]

Option 2; They'll strike down all marriage laws as a violation of freedom of religion under the First Amendment.

[afleitch]

Option 2; They'll strike down all marriage laws as a violation of freedom of religion under the First Amendment.

Which marriage laws?

[True Federalist (진정한 연방 주의자)]

Options 2 and 4 are impossible.  I just do not see any valid way DOMA could be overturned without finding that same-sex marriage is a right. The pseudo-federalist argument that the Federal government must be bound by each State's definition of marriage contradicts tons of precedent on a wide range of issues well beyond marriage or even civil rights. If DOMA is struck down, then all bans against same-sex marriage will be stuck down nationwide.

The key distinction here is that the federal government currently doesn't marry anyone. They leave it up to the states to grant marriage licenses. That puts the federal government in a very awkward situation equal protection-wise when they start granting federal benefits to some legally married couples in Massachusetts but not others. The court doesn't necessarily have to find a fundamental right to marriage in order to strike down DOMA on equal protection grounds.

I'll disagree with that on several grounds. First of all, the federal government does marry people. Besides the marriage laws of the territories, it also sets rules for overseas marriages of US military and diplomatic personnel.  Second, the legislative history of DOMA and similar state laws is analogous that of the anti-polygamy laws enacted in the latter part of the 19th century. A hitherto unexpected challenge to the conventional definition of marriage causes laws to be enacted to specify those portions of the status quo which were considered so obvious as to not need being specified in the law. Third, quite apart from marriage there are quite a number of areas of the law where dual sovereignty exists and the Federal government chose to defer to the judgement of the states and then later chose to establish its own rules in part or in total. Last, but not least, DOMA only presumes to establish a standard for civil marriage is so far as that marriage interacts with the Federal government.

So, I'll reaffirm what I said before. If the court strikes DOMA, it will be on equal protection grounds that cause all laws prohibiting same-sex marriage, both State and Federal, to be struck down with DOMA.

Option 2; They'll strike down all marriage laws as a violation of freedom of religion under the First Amendment.

Which marriage laws?

I presume that when he said all he meant all.  Maybe with a sort of a reverse of what I think will happen with the Prop 8 case with all civil marriages being transformed into civil unions and the government not using the word "marriage" to describe a government recognized relationship.  I don't see the court being quite so silly.  At most when it strikes down Prop 8, it will tell California it needs to use the same term for both same-sex civil unions and opposite-sex marriages, but leave it up to the State to determine whether it will use civil unions or marriages.

[Thomas D]

I don't want to start another topic for this, so I'll put this here.

What are the odds the Court hands down both decisions on the same day? And if not which one should go first?

[True Federalist (진정한 연방 주의자)]

They heard the arguments for both on the same day and their rulings will interact to some extent, so I think they will announce the decision for both on the same day. No matter how they rule, I expect them to announce the ruling on the Prop 8 case first.

Since I expect the ruling on Prop 8 will be to strike down the distinction between civil unions and civil marriages, that will have an impact no matter how they rule on DOMA. Less likely rulings from the Prop 8 case would be a narrow California-only ruling or to uphold Prop 8. I don't see them using the Prop 8 case to strike down bans against same-sex marriage nationwide. They'll stick to interpreting the narrower circuit court ruling rather than the broader district court ruling because if they do decide to strike the bans nationwide, the DOMA case gives a less cluttered trial history to do it with, plus it will be more dramatic to do it that way and Roberts does like to be dramatic at times.  I think he purposely wrote his decision in the Obamacare case to trip up reporters rushing to be first with the news.

Not that I think same-sex marriage bans will be struck down.  Indeed, I think DOMA will be upheld in full, but I could be wrong.  I am certain that if DOMA goes down, it will go down in full with the court finding that there is a constitutional right to same-sex civil marriage.  It won't be a ruling that leaves the issue up to the States to decide with the Federal government having no choice but to follow the definitions the States use.

[Amenhotep Bakari-Sellers]

Hopefully, option 3. In my opinion gays should be allowed to marry in which the state it applies to, in this case California.  Kennedy believes in civil unions and getting rid of dadt in the military but not marriage.

[Antonio the Sixth]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

[True Federalist (진정한 연방 주의자)]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

As I said before, I don't think options 2 or 4 are going to happen because those options would require a profound rearrangement of Federal/State power in favor of the States, a rearrangement that would affect a considerable body of established case law in fields totally unrelated to marriage.  I don't see the Supreme Court ruling that the Federal government has no choice but to use the definition of marriage that each State chooses to use for itself.  If DOMA goes down it will be because the Court finds that neither the Federal government nor the State governments can choose to recognize only opposite-sex marriages.

[hawkeye59]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

Why would it? The Equal Protection Clause seems to argue otherwise. The states can't give legal rights to some but not others.

[True Federalist (진정한 연방 주의자)]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

Why would it? The Equal Protection Clause seems to argue otherwise. The states can't give legal rights to some but not others.

The Federal Constitution still generally views rights in the classical sense of negative rights that prevent the state from doing things to people.  To the extent that civil marriage is a right, it is one of the positive rights asserting that the government must do certain things for people. While some State Constitutions embrace the concept of positive rights, the Federal one does not.

[Antonio the Sixth]

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

As I said before, I don't think options 2 or 4 are going to happen because those options would require a profound rearrangement of Federal/State power in favor of the States, a rearrangement that would affect a considerable body of established case law in fields totally unrelated to marriage.  I don't see the Supreme Court ruling that the Federal government has no choice but to use the definition of marriage that each State chooses to use for itself.  If DOMA goes down it will be because the Court finds that neither the Federal government nor the State governments can choose to recognize only opposite-sex marriages.

I see... that's annoying for sure.

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

I support option 2, and I think that the Court is going to make a decision of this kind.

I hope I'm not the only liberal (and supporter of gay marriage) who does not think gay marriage bans should be ruled unconstitutional (even though DOMA should). I oppose judicial activism from any side and this would pretty clearly be an overreach of the SC's mission.

Why would it? The Equal Protection Clause seems to argue otherwise. The states can't give legal rights to some but not others.

There is certainly a case to be made that banning gay marriage is a form of legal discrimination, but I also think there are still valid arguments against it. It isn't a clear-cut case like for racial discrimination and so forth. Due to the debatable nature of this claim, I would think the Court should defer to the Congress rather than mandate its own vision of the argument, whatever it be.

[True Federalist (진정한 연방 주의자)]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

[Antonio the Sixth]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

I just think that for the sake of consistence, it would be better to have a precise rule of who does what. Obviously this is not a constitutional argument, but at least I believe it would be good policy.

[True Federalist (진정한 연방 주의자)]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

I just think that for the sake of consistence, it would be better to have a precise rule of who does what. Obviously this is not a constitutional argument, but at least I believe it would be good policy.

While in some respect it would be more convenient, it also would not be possible in a federal form of governance. It would require either a unitary or confederal form of government in which there was no dual sovereignty, but instead clearly defined spheres of non-overlapping sovereignty.  I'm not a fan of unitary governments, at least not for countries as diverse as the United States or Italy.  Confederal governments are more theoretical than actual unless the top level government is so weak as to have practically no powers at all.

[TDAS04]

I guessed California only, but I don't know.

If SCOTUS upholds the US Constitution, it will legalize it nationwide.  The equal protection clause should preclude society from putting certain people "in their place" without good reason.  Laws denying gay couples the same rights to civil marriage as straight couples are not simply declarations of the inferiority of gay couples; they enshrine the notion that gays and lesbians are inferior individuals.

Technically, the idea that there be no civil marriages for anyone would be constitutional.  Marriages would just be left to the various religious institutions, and the term would lose all legal meaning.  As long as state-sponsored unions provide the same title and equal benefits for gay and straight couples, that would be acceptable.  At least government would not be discriminating.  The only problem is, I do not know how willing heterosexual couple be when it comes to giving up their state-recognized marriages.

[Antonio the Sixth]

In any case, we need to know who decides what a marriage is. You can't have both a State marriage under certain criteria and a federal marriage under others. We need to settle who does what. I have a hard time seeing how you can justify two separate forms of marriage coexisting in a country.

Why can't you?  Because of dual Federal/State sovereignty, there are already quite a few areas where the Federal and State governments have different rules.

I just think that for the sake of consistence, it would be better to have a precise rule of who does what. Obviously this is not a constitutional argument, but at least I believe it would be good policy.

While in some respect it would be more convenient, it also would not be possible in a federal form of governance. It would require either a unitary or confederal form of government in which there was no dual sovereignty, but instead clearly defined spheres of non-overlapping sovereignty.  I'm not a fan of unitary governments, at least not for countries as diverse as the United States or Italy.  Confederal governments are more theoretical than actual unless the top level government is so weak as to have practically no powers at all.

Dual sovereignty can mean that States and the Federal Government both are sovereign in different respects, but not necessarily that they are both sovereign on the same single domain. Whether the States or the Federal Government define marriage, it would make sense, but I just think it is silly to have two layers of marriage, one federal and another statewide.

[NewYorkExpress]

Option 1 by a 5-4 vote.

[Thomas D]

Option 5 by a 6-3 vote.

[Marokai Backbeat]

Much as it pains me, this Court has given me very little reason to be optimistic:

Option 1 by a 5-4 vote.

[True Federalist (진정한 연방 주의자)]

Much as it pains me, this Court has given me very little reason to be optimistic:

Option 1 by a 5-4 vote.

While I don't think the court will strike down DOMA, I would be quite surprised if it doesn't strike down Prop 8 in language that would make not only California, but all States that now have civil unions that are civil marriages in all but name be States where gay civil marriage exists.

[TDAS04]

Part of me hopes that SCOTUS just legalizes it in California.  While prohibiting gay marriage is unconstitutional, there may be practical benefits for kicking the can down the road for most of the US.  It would further minimize the risk for backlash.  With support for marriage equality growing the way it is, it be better to just watch the forces opposed die a slow and painful death for a few more years.