Predict how SCOTUS rules on gay marriage

[Antonio the Sixth]

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.

Exactly. The last thing we need is the judiciary stepping up and forcing gay marriage down the throat of States that have not yet fully maturated to the idea. In a couple decades, 80% of States will have marriage equality and DOMA will have been repealed. By that time, the last few diehard opponents can be forced to follow suit, based on "evolving standards" or something of the kind.

[Thomas D]

I would rather win today then tomorrow.

[Antonio the Sixth]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

[TDAS04]

I'd like to get marriage equality by any legal means.  Unelected judges DO have a role in preventing direct democracy from infringing on minority rights.  If everything was determined by a majority vote, that could become mob rule, and any constitution would become irrelevant.  If not for a powerful judiciary, there would have been no decisions striking down segregation or bans on interracial marriage.

Having said that, there needs to be some viable, popular support for anything to get done.  When SCOTUS legalized interracial marriage nationwide in 1967, it was actually legal in a majority of the states.  There was not much that the South could have done (such as trying to pass an amendment to the Constitution overturning the decision).  In the case of gay marriage, there is a little bit more risk for backlash (though certainly not as much as a few years back).  If we can get it legal in a few more states, I would be more comfortable with a sweeping Supreme Court ruling.  For now, I would just like to continue to enjoy watching the obstacles to gay rights fall like dominoes, and to continue watching the homophobes make noise.  It's fun, because I know that they are losing, and that they will lose.

[Thomas D]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

So gay people in Alabama & Utah have to wait 20 years for equal rights so we can have a 'pure' victory?  

Laws that ban Gay Marriage violate the equal protection clause of the 14th amendment. That is true toady and will be true in 20 years. So lets get rid of all these laws now.

[Antonio the Sixth]

Things are never so clear-cut when it comes to Constitutional interpretation... Of course the Equal Protection Clause could be read as mandating that gay relationship should be given the same degree of official recognition (and financial benefits) as heterosexual relationships. On the other hand, one could make the case that the Equal Protection Clause only applies to individuals in a strict sense. That means that you can't discriminate against an individual because he's gay, but that you can discriminate between the relationships that two individuals choose to enter into, based on whether this relationship is same-sex or not. This is not, strictly speaking, a discrimination against gays, even though it becomes one in practice.

While I personally would lean towards the former interpretation (though with major caveats... you can't extend to relationships the exact same rights enjoyed by individuals, otherwise this could have many unintended effects), you all have to acknowledge that both these doctrines are rationally defensible and both still enjoy a significant degree of support. Arbitrarily choosing between one of those two lines based on one's personal conviction, and enforcing such line of reasoning to anyone including people who disagree, is the textbook definition of judicial activism. Of course, judicial activism might be in some cases necessary (when one doctrine is clearly morally superior to the other, and when a decision is necessary to end a particularly intolerable situation... see Brown v. Board). However, judicial activism is a dangerous and fundamentally undemocratic tendency, so let's limit it to those few cases where it is really indispensable. We have learned to know how horrible and vile right-wing judicial activism can be, in decisions like Citizens United. I don't want the left to act the same way, even if our causes are just and theirs are unjust.

Really, we should all stop using the constitution as a tool to advance a political agenda.

[TDAS04]

Things are never so clear-cut when it comes to Constitutional interpretation... Of course the Equal Protection Clause could be read as mandating that gay relationship should be given the same degree of official recognition (and financial benefits) as heterosexual relationships. On the other hand, one could make the case that the Equal Protection Clause only applies to individuals in a strict sense. That means that you can't discriminate against an individual because he's gay, but that you can discriminate between the relationships that two individuals choose to enter into, based on whether this relationship is same-sex or not. This is not, strictly speaking, a discrimination against gays, even though it becomes one in practice.

While I personally would lean towards the former interpretation (though with major caveats... you can't extend to relationships the exact same rights enjoyed by individuals, otherwise this could have many unintended effects), you all have to acknowledge that both these doctrines are rationally defensible and both still enjoy a significant degree of support. Arbitrarily choosing between one of those two lines based on one's personal conviction, and enforcing such line of reasoning to anyone including people who disagree, is the textbook definition of judicial activism. Of course, judicial activism might be in some cases necessary (when one doctrine is clearly morally superior to the other, and when a decision is necessary to end a particularly intolerable situation... see Brown v. Board). However, judicial activism is a dangerous and fundamentally undemocratic tendency, so let's limit it to those few cases where it is really indispensable. We have learned to know how horrible and vile right-wing judicial activism can be, in decisions like Citizens United. I don't want the left to act the same way, even if our causes are just and theirs are unjust.

Really, we should all stop using the constitution as a tool to advance a political agenda.

I take the Equal Protection Clause as applying strictly to individuals.  It does not protect groups, per se.  However, it certainly protects individuals from being treated in a subordinate fashion due to the group that they happen to belong to.  There is a strong case that granting lesser status to gay couples does in fact place gay individuals in a second-class citizen status.  After all, desiring a gay relationship is an integral part of being gay.  The question then becomes whether or not granting gay couples equal status with straight couples poses any tangible (secular) threat to society.  Certainly, prohibiting the shouting of "FIRE" in a crowded theatre is a reasonable limit on freedom of speech.  Do gays getting married pose such a threat?  You decide.

I don't believe that judges should be allowed to be dictators.  However, there needs to be three separate and distinct branches of Government to check one-another.  That prevents any branch from obtaining absolute power and oppressing the people.  If the Supreme Court makes that bad of a decision, there is the option of Congress increasing the number of justices.  The US was never intended to be a pure democracy.  It is not Athens.

[Antonio the Sixth]

I take the Equal Protection Clause as applying strictly to individuals.  It does not protect groups, per se.  However, it certainly protects individuals from being treated in a subordinate fashion due to the group that they happen to belong to.  There is a strong case that granting lesser status to gay couples does in fact place gay individuals in a second-class citizen status.  After all, desiring a gay relationship is an integral part of being gay.  The question then becomes whether or not granting gay couples equal status with straight couples poses any tangible (secular) threat to society.  Certainly, prohibiting the shouting of "FIRE" in a crowded theatre is a reasonable limit on freedom of speech.  Do gays getting married pose such a threat?  You decide.

This line of reasoning has certainly something to it, but it also poses major problems. If I well understand, you are arguing that, although the ban on gay marriages does not in itself constitute a discrimination on individuals, this limitation put on their ability to marry people of their sex has a discriminatory effect and "place gay individuals in a second-class citizen status". I fundamentally agree with this. However, I don't think that these are sufficient grounds for the Equal Protection Clause to apply. The main problem is that the discriminatory nature of gay marriage bans applies to an area (marriage) which is subject to personal choice. It is, to put it as broadly as possible, a regulation on what are the conditions for two people to apply for a legally recognized status of association. So technically there is nothing in a same-sex marriage ban that discriminates against gays themselves. To state it in the dumbest possible way: gays have a right to marry - but only with people of a different sex than theirs. This policy is only discriminatory in that a certain category of individuals would have a preference for a form of relationship which would not be allowed. Thus, in some way, gays are self-discriminating and making themselves second class citizens, by their own choice of wanting to marry people of the same sex. Again, let me be clear: I do not subscribe to this opinion. But you have to admit that it is a legally and rationally valid line of argumentation. We liberals have to accept that many people embrace this vision, and have the same claim at judicial validity than us.

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I am deeply attached to the independence of the judiciary, and believe it is essential to have a check on elected representatives preventing them from overstepping their power. However, I believe the US goes way too far in judicial omnipotence. Here you have these 9 lifetime appointees, and if 5 of them happen to have the same personal interpretation of the Constitution, they are able to force it down the throat of everybody else without ever responding to anybody. We have had an occasion to see how awful this can be: look at Citizens United. I don't think this kind of judicial overreach is healthy for democracy. I think the judiciary should limit itself to upholding the most clear-cut, unquestionable or reasonably consensual interpretations of the Constitution, and defer to the legislature whenever a more ambiguous case arises. Otherwise, we are effectively surrendering all our decisional power to the personal beliefs of five old men in robes.

[politicallefty]

I think the judiciary should limit itself to upholding the most clear-cut, unquestionable or reasonably consensual interpretations of the Constitution, and defer to the legislature whenever a more ambiguous case arises. Otherwise, we are effectively surrendering all our decisional power to the personal beliefs of five old men in robes.

Who decides what is "clear-cut and unquestionable" when it comes to constitutional interpretation? Both sides of any particular issue would believe their side to be the reasonable side.

When it comes to the topic, I really don't know what the Court will do. (At the very least, I don't see Prop 8 surviving.) I hope it goes for the last option and establishes marriage equality in all 50 states. There's certainly a possibility that this could happen, but I can't say what the odds would be. Personally, that seems to be the most consistent option with current precedent and the Fourteenth Amendment. It's not even necessary to look at marriage discrimination as discriminating on the basis of sexual orientation, but rather sex discrimination instead. Such a classification would raise the standard to intermediate scrutiny. I don't argue that the state has to recognize marriage. However, so long as it is granted to opposite-sex couples, it must also be granted to same-sex couples in order to be constitutionally permissible. It is discriminatory to deny an individual the right to marry the person they so choose on the basis of sex, let alone on the basis of sexual orientation. That's not to say I think gay marriage bans satisfy even rational basis. However, I do believe the standard of review should be higher, just as Olson and Boies argue in their brief.

[TDAS04]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

I don't agree with lifetime appointment for members of SCOTUS; a limit of 20 years would be better.  However, they should NEVER be up for election, reelection, or reconfirmation.  They should interpret the Constitution to the best of their abilities, and elections would interfere with that.

[TDAS04]

It would be interesting to know if Olsen and Bois use a similar argument made by Thurgood Marshall in fighting for school desegregation.  Marshall conducted a study showing that black children tended to view white dolls more favorably than black dolls.  He concluded that legal school segregation negatively impacted the self-esteem of black children.  As individuals, they felt bad due to their skin color.  Why not question the impact that discriminatory laws have on (potentially suicidal) LGBT youth today?

When society bans gay marriage, it asserts its belief in heterosexual supremacy.  With the Equal Protection Clause in the Constitution, judges must take a look at any law designed to put certain people "in their place."  Then, they should determine whether or not such a law serves any reasonable, secular purpose.  For example, does the law protect the public from danger?

[HagridOfTheDeep]

My Dred Scott paper suddenly seems a lot more poignant...

[Antonio the Sixth]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

Again, I do not believe in the argument I have laid out. However, can you deny that it is a legally sound rationale? And yes, I realize that it undermines much of our anti-discrimination precedents. There are many interpretations of the Constitution that can have morally abhorrent outcomes. The reason is simple: the US Constitution is not perfect. Far from it, in fact. Your argument seems to assume that the Constitution would never tolerate a ban on interracial marriage. But why so? Interracial marriage bans have been going on for over a century after the 14th Amendment was passed, and I'm pretty sure that none of the Congressment and State Legislators who ratified it interpreted it as making such bans unconstitutional. The reason interracial marriages are now constitutionally protected is simply that, as a society, we have come to a consensus that they should be constitutionally protected. This is the "evolving standards" doctrine, of which I'm not exactly fond but which strikes me as the lesser evil when you have a Constitution which is so difficult to amend. In a couple decades, the "evolving standards" doctrine will apply to same sex marriages as well, and the handful of States that will still not have it will be forced to join the rest of America. This is the best we can do as Progressives to advance our cause without turning the Supreme Court into a political body.

[TDAS04]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

Again, I do not believe in the argument I have laid out. However, can you deny that it is a legally sound rationale? And yes, I realize that it undermines much of our anti-discrimination precedents. There are many interpretations of the Constitution that can have morally abhorrent outcomes. The reason is simple: the US Constitution is not perfect. Far from it, in fact. Your argument seems to assume that the Constitution would never tolerate a ban on interracial marriage. But why so? Interracial marriage bans have been going on for over a century after the 14th Amendment was passed, and I'm pretty sure that none of the Congressment and State Legislators who ratified it interpreted it as making such bans unconstitutional. The reason interracial marriages are now constitutionally protected is simply that, as a society, we have come to a consensus that they should be constitutionally protected. This is the "evolving standards" doctrine, of which I'm not exactly fond but which strikes me as the lesser evil when you have a Constitution which is so difficult to amend. In a couple decades, the "evolving standards" doctrine will apply to same sex marriages as well, and the handful of States that will still not have it will be forced to join the rest of America. This is the best we can do as Progressives to advance our cause without turning the Supreme Court into a political body.

As long as you understand that the Constitution does not grant the right to interracial marriage any more than the right to same-sex marriage.  Also, as I stated in a previous post, there has to be some viable popular support to get anything done.  It would be impractical for the court impose a decision that is opposed by, say, 90% of the population.

[Antonio the Sixth]

Californian Tony, I know that you personally don't want discrimination, but with your argument, there is no valid constitutional right to interracial marriage.  After all if the, if Government chooses to restrict marriages by people from one race to people of another, that does not discriminate against individuals from any race, and thus, is not unconstitutional.

Again, I do not believe in the argument I have laid out. However, can you deny that it is a legally sound rationale? And yes, I realize that it undermines much of our anti-discrimination precedents. There are many interpretations of the Constitution that can have morally abhorrent outcomes. The reason is simple: the US Constitution is not perfect. Far from it, in fact. Your argument seems to assume that the Constitution would never tolerate a ban on interracial marriage. But why so? Interracial marriage bans have been going on for over a century after the 14th Amendment was passed, and I'm pretty sure that none of the Congressment and State Legislators who ratified it interpreted it as making such bans unconstitutional. The reason interracial marriages are now constitutionally protected is simply that, as a society, we have come to a consensus that they should be constitutionally protected. This is the "evolving standards" doctrine, of which I'm not exactly fond but which strikes me as the lesser evil when you have a Constitution which is so difficult to amend. In a couple decades, the "evolving standards" doctrine will apply to same sex marriages as well, and the handful of States that will still not have it will be forced to join the rest of America. This is the best we can do as Progressives to advance our cause without turning the Supreme Court into a political body.

As long as you understand that the Constitution does not grant the right to interracial marriage any more than the right to same-sex marriage.  Also, as I stated in a previous post, there has to be some viable popular support to get anything done.  It would be impractical for the court impose a decision that is opposed by, say, 90% of the population.

Even assuming that you are right about this 90%-10% ratio (I'm not sure you can find 10% of Americans who think corporations are people)... don't you think there is something wrong with the Court taking a position that is only supported by 20, 30, 50 or even 70% of Americans? Who are these people to arbitrarily pick a constitutional interpretation over another when both have significant following, and whose judgment trumps those of all democratically elected bodies? I don't think this is the role of judges. The Supreme Court obviously has to uphold the Constitution, but only in ways that can't legitimately be argued against or that aren't the subject of controversy.

I think the fundamental problem is that Americans tend to confuse what is constitutional with what is good policy. They have this romanticized vision of the US Constitution as the perfect document which, if correctly interpreted, says everything a government needs to do to govern well. Of course this fantasy is much more widespread among Conservatives than among Liberals, but as the gay marriage discussion proves, many liberals seem to at least unconsciously adhere to it. Unfortunately, this is just plain wrong. The US Constitution is tragically imperfect, morally flawed, and unfit to rule a modern democracy in the 20th Century. Worshiping the Constitution as this magical document that can fix all the moral evils of the nation is terribly counterproductive, because by making it so sacred it highly discourages amending it. If Americans adopted a more skeptical view of their Constitution, maybe this would encourage them to amend it more often. So that maybe the decision to constitutionally protect interracial marriages would have come from the people, rather than from 9 old judges.

[TDAS04]

Californian Tony, if I understand what you're saying, you believe that the Constitution is so imperfect (which it is, of course) that there is no point for judges to interpret in ways that may be controversial.  I disagree, since I believe that the courts should have some discretion where the Constitution's language is vague.  It prohibits "cruel or unusual punishment."  What is that?  It was never specified.  I suppose you could just interpret that to mean only that which was "cruel or unusual" in 1787.  Capital punishment for 13-year-olds may have been acceptable back then, but I would hope that high-ranking judges would block that today if necessary.  Some other areas of the Constitution are quite clear, though.  Requiring that the President be at least 35 at the time of inauguration is set in stone until amended, and I agree that it would be silly for SCOTUS to decide that 32 is now legal due to evolving standards.  Nevertheless, what does "the right to a fair and speedy trial" mean?  Someone needs to interpret that, and it should be determined by someone a little wiser than you or me, and by someone wiser than 51% of the public.  "Equal Protection under the Law" is the same.  As I said earlier, the US is not Athens.  We do not exterminate the eccentric among us through direct democracy.

[Antonio the Sixth]

Naturally, the SCOTUS always has to interpret the Constitution to some extent. In most of the cases, this can be done without much difficulty. One can distinguish 3 categories:

- You cited the provisions that are unquestionably clear, such as the 35-year qualification to run for President. These are the most obvious ones, and a single judge would be enough to enforce them.

- I would add to that the numerous provisions where an interpretation has become sufficiently consensual among the public that espousing it has become plain common sense (all would agree that torture would fall into the "cruel and unusual punishment" category, for example). In those cases, common agreement has settled the issue for the court. If the consensus shifts at some point in time, the "evolving standards" doctrine can be brought up to justify a change in interpretation (though I would personally prefer a Constitutional Amendment).

- There are also cases where the most careful, reasoned and insightful reading of the text can allow to find the "correct" interpretation even when it was not initially self-evident. This is what the Court should really be about, IMO: they should deliberate and reason collectively so as to reach the true meaning of words; the meaning that, though hidden, is nonetheless inextricably and universally contained in the words written in the Constitution. This would however suppose that politics and personal beliefs do not play a role in the decisions of the justices. Ideally, they should rid themselves of their preconceptions and keep arguing based on plain legal reasoning until a unanimous verdict is reached. Isn't it what we require for juries, after all? That would guarantee that they all have reached the highest level of wisdom that they could reach collectively. Even if unanimity is too unrealistic a requirement, at least a 7-2 majority requirement would make sense if we want to make the SCOTUS a judiciary, rather than political, body.

Still, you have a few cases that do not fit in any of these 3 categories. These are the cases for which two (or more) equally valid rationales can be brought up in support of different interpretations of the text, both of which are supported by a significant share of the public. This is the realm of what we call "judicial activism". Judicial activism means that a judiciary body, by resolving the issue in one direction or another, effectively substitutes itself to political authorities and takes a decision which is political in nature. If a court chooses to follow rationale A over rationale B when both are valid from a legal standpoint, they are doing so because rationale A is closer to their personal political conviction. And by making this kind of consideration, they are substituting themselves to those legislative bodies who are supposed to decide based on political conviction because they are a direct expression of the popular will.

I don't mean to say that judicial activism is never acceptable. In certain cases, it can prove to be the lesser of evils. When it is used to put an end to a situation that runs afoul of basic democratic values and causes an immense harm to individuals, and if the political bodies have proven repeatedly unable or unwilling to act, then judicial activism, although never right at the theoretical level, can be good from a practical standpoint. The Warren Court engaged in judicial activism, and most of the time it did so with cautious consideration to what I just said. However, all of us should remain careful that judicial activism, from the exceptional weapon it is, does not turn into a common practice. Contrary to what we might think, conservatives are the firsts who engaged in systematic judicial activism to counter the will of the people as expressed by its representatives. It was under Roosevelt, where a bunch of reactionary justices was hellbent on undermining New Deal policies. Recently, conservatives have revived this strategy, as decisions like Citizens United proves. I hope that Liberals, if they ever have a chance to, will refrain from adopting this openly partisan attitude and will accept to defer to the legislature even when they could use judicial authority to advance their agenda.


Ideally, I think the Constitution should be completely rewritten in a language so clear that it might not give rise to several concurring (and rationally sound) interpretations. But I know that this is a pipe dream more than anything else. Still, there are many things in the US Consitution that could and should be clarified.

[SteveRogers]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

If you believe that a right to marriage equality exists through the constitution's guarantee of equal protection under the law, then no, going through the courts doesn't cheapen the "moral quality" of the win because it's not a  question that has any place being on the ballot to begin with.

[Likely Voter]

If they narrow the ruling to CA by arguing once you give a right you cannot take it away, then it could imply bans on SSM in other states are constitutional. But more likely it will still leave that central question hanging and they will eventually have to deal with it again. So I think they will make a ruling either upholding Prop 8 or ruling all such bans are unconstitutional. I think that is why they took it up in the first place. Why take it on if they were just going to fudge it up.

[Thomas D]

Okay everyone, don't foget to leave a plate of raindow cookies out for gay Santa tonight.

Hmm.. That made more sense in my head...oh well.

[Bacon King]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

I'm fairly certain that most African Americans would disagree with your assessment here.

[MyRescueKittehRocks]

The only right scenario is Prop 8 and DOMA stand. Anything deviating from that would be simply seen as judicial activism. And add to it that all GLBT couples in California's "marriage licences are void"

The people of California have spoken and it's that gay marriage is banned.

[Antonio the Sixth]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

I'm fairly certain that most African Americans would disagree with your assessment here.

I'm sorry, I am a staunch supporter of same sex marriage, but I don't consider it to be an issue nearly as important and righteous as the Civil Rights movement - not even close. Call me a DINO.

[Bacon King]

I would rather win today then tomorrow.

What about the moral quality of the win? Winning through the vote of the people or of their elected representatives is infinitely better than winning through the dictate of a bunch of irresponsible, arrogant and omnipotent judges appointed for life.

I'm fairly certain that most African Americans would disagree with your assessment here.

I'm sorry, I am a staunch supporter of same sex marriage, but I don't consider it to be an issue nearly as important and righteous as the Civil Rights movement - not even close. Call me a DINO.

I entirely agree with your assessment of the unique importance of the struggle for racial equality, don't get me wrong. However, your statement seems to suggest that the Civil Rights Movement's use of the Federal Court system to achieve racial equality was somehow morally inferior to waiting around for Southern whites to stop being racist. How could the latter option possibly be "infinitely better" and of a greater "moral quality" than the former?

I could have mentioned other topics, of course, but the Civil Rights Movement seemed the most apt to highlight the shortcomings of the view you espoused. Judges are appointed for life precisely because they need the ability to make impartial (as impartial as humanly possible, anyway) decisions without being forced to heed public opinion that is contrary to the Constitution.

[○∙◄☻¥tπ[╪AV┼cVê└]

I was thinking. Not much would be really gained if only Prop. 8 was struck down, since it would be super cake to repeal it (via another Proposition) next year.