SCOTUS to Take Up Gay Marriage

[Rabbit of Caerbannog]

Today the U.S. Supreme Court (finally) announced it would hear arguments for two gay marriage cases: Windsor v. United States and Hollingsworth v. Perry. Windsor is a challenge to the federal Defense of Marriage Act while Perry is, of course, a challenge to California's Proposition 8. The implications of these cases are enormous, as the first case deals with the thousand or so benefits afforded to straight couples but denied to gay couples, while the second has a possibility of legalizing same-sex marriage on a national level. Arguments are expected for March of 2013 with a decision in late June

[Radiation]

I am hoping that they will find that restricting marriage to the binary heterosexual model is unconstitutional and that marriage between same sex couples will be allowed. I know that there are countries in Europe that have same sex marriage and they seem to be doing fine. It would of course be foolish for the SCOTUS to say no as the rest of the Western world seems to be more progressive and moving past old paradigms.

[Rabbit of Caerbannog]

I am hoping that they will find that restricting marriage to the binary heterosexual model is unconstitutional and that marriage between same sex couples will be allowed. I know that there are countries in Europe that have same sex marriage and they seem to be doing fine. It would of course be foolish for the SCOTUS to say no as the rest of the Western world seems to be more progressive and moving past old paradigms.

That's exactly what I was complaining about on the thread I started yesterday on the topic of the Mexican Supreme Court striking down a gay marriage ban in Oaxaca. This is what bothers me about the whole "American exceptionalism" thing. We should be leading the way on human rights, not playing catch-up.

[Distind]

Is that the Prop 8 case where the evidence was down right amusing?

[dpareja]

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

[Rabbit of Caerbannog]

Is that the Prop 8 case where the evidence was down right amusing?

You mean where one of the Prop 8 proponents said gays and lesbians were more likely to molest children and then said he learned it "from the Internet"? Yes, that's the one.

[ironbite]

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

Wow is that cynical

Ironbite-especially since the guys defending Prop 8 failed on every level.

[Rabbit of Caerbannog]

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

Bear in mind, though, that Kennedy has a very pro-gay rights track record, having written the opinions in Lawrence v. Texas (striking down sodomy laws) and Romer v. Evans (striking down a Colorado constitutional amendment which stripped legal protections from gays and lesbians). He also sided with the four liberal justices in Christian Legal Society v. Martinez which ruled that a public law school could deny official recognition to student groups which disallowed gay members.

EDIT: Moreover, there are no grounds for declaring laws which legalized same-sex marriage to be unconstitutional. If Prop 8 is, somehow, upheld all it would mean is that the states that want to ban same-sex marriage can, while the states that want to legalize it can do so as well.

[erictheblue]

Is that the Prop 8 case where the evidence was down right amusing?

Yes.

If the USSC strikes down Prop 8, it likely won't affect the rest of the country at all. It's been a while since I read the 9th Cir. decision, but it sticks in my mind it was struck down there based on "you can't give rights and then take them away." (CA has previously allowed SSM, then Prop 8 passed.) If the USSC does strike down Prop 8, it will likely be on those same grounds. Meaning that states that have SSM will keep it, but those that don't have it will be in the same boat they are now.

As for the other case, as I understand it, it also won't directly affect states that don't have SSM. All it will do is allow people who live in those states with SSM to get federal benefits that they are eligible for (Social Security, vet benefits, etc). I also think it would allow people who are in a SSM who work for the federal government to put their same-sex spouse on their health insurance. (Not sure on that last one.)

What striking down DOMA would do is set up Loving v. Virginia, Part II. A couple could marry in a state that recognizes SSM, then go back to a state that does not and file under the Full Faith and Credit Clause of the US Constitution. (That's exactly what the Lovings did. They married in DC - which recognized interracial marriage - then filed suit in Virginia, where they lived.)

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

Unlikely. Kennedy has written opinions favoring gay rights. (He wrote Lawrence v. Texas, for instance.)

[Rabbit of Caerbannog]

Is that the Prop 8 case where the evidence was down right amusing?

What striking down DOMA would do is set up Loving v. Virginia, Part II. A couple could marry in a state that recognizes SSM, then go back to a state that does not and file under the Full Faith and Credit Clause of the US Constitution. (That's exactly what the Lovings did. They married in DC - which recognized interracial marriage - then filed suit in Virginia, where they lived.)

But remember that in Loving the couple was legally barred from going back to Virginia and was jailed when they returned, which I think is a very big distinction between the two.

Actually now that I think about it the Loving case dealt with the Equal Protections Clause and not Full Faith & Credit.

[Meshakhad]

Is that the Prop 8 case where the evidence was down right amusing?

Yes.

If the USSC strikes down Prop 8, it likely won't affect the rest of the country at all. It's been a while since I read the 9th Cir. decision, but it sticks in my mind it was struck down there based on "you can't give rights and then take them away." (CA has previously allowed SSM, then Prop 8 passed.) If the USSC does strike down Prop 8, it will likely be on those same grounds. Meaning that states that have SSM will keep it, but those that don't have it will be in the same boat they are now.

As for the other case, as I understand it, it also won't directly affect states that don't have SSM. All it will do is allow people who live in those states with SSM to get federal benefits that they are eligible for (Social Security, vet benefits, etc). I also think it would allow people who are in a SSM who work for the federal government to put their same-sex spouse on their health insurance. (Not sure on that last one.)

What striking down DOMA would do is set up Loving v. Virginia, Part II. A couple could marry in a state that recognizes SSM, then go back to a state that does not and file under the Full Faith and Credit Clause of the US Constitution. (That's exactly what the Lovings did. They married in DC - which recognized interracial marriage - then filed suit in Virginia, where they lived.)

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

Unlikely. Kennedy has written opinions favoring gay rights. (He wrote Lawrence v. Texas, for instance.)

On the other hand, SCOTUS could follow the logic of the California judge who first struck down Prop 8, which is that denying rights to gay couples is bullshit, and therefore make gay marriage the law of the land.

The fundies' reactions would be PRICELESS.

[Auri-El]

So if DOMA is struck down, that would mean a couple who gets married in Iowa and then moves to Michigan, Michigan would have to recognize the marriage for benefits, taxes, and so on, right? Isn't that what the Equal Protections Clause means?

[Rabbit of Caerbannog]

On the other hand, SCOTUS could follow the logic of the California judge who first struck down Prop 8, which is that denying rights to gay couples is bullshit, and therefore make gay marriage the law of the land.

The fundies' reactions would be PRICELESS.

Ah yes...we would feel a great disturbance in the Force, as if millions of fundies cried out in terror and were suddenly silenced...and it would be GLORIOUS!

[Canadian Mojo]

On the other hand, SCOTUS could follow the logic of the California judge who first struck down Prop 8, which is that denying rights to gay couples is bullshit, and therefore make gay marriage the law of the land.

The fundies' reactions would be PRICELESS.

Ah yes...we would feel a great disturbance in the Force, as if millions of fundies cried out in terror and were suddenly silenced...and it would be GLORIOUS!

Silenced, why, did the rapture actually get them?
Honestly, that's the only way I see them shutting the fuck up regardless which way the decision goes.

I know that there are countries in Europe that have same sex marriage and they seem to be doing fine.

Your neighbors to the north are doing pretty damn good too.   

[dpareja]

My prediction: 5-4, Roberts, Scalia, Thomas, Kennedy, Alito in the majority, Scalia writes the opinion, and possibly words it to declare gay marriage itself outright unconstitutional.

Unlikely. Kennedy has written opinions favoring gay rights. (He wrote Lawrence v. Texas, for instance.)

True, but that one and Romer were heard when Stevens was on the Court, and as senior associate justice he assigned the writing of the majority opinion if the Chief Justice was not in the majority--thus he would promise them to Kennedy, while Rehnquist and Roberts wouldn't. Right now Roberts, Scalia, Thomas and Kennedy are all senior to Breyer, Ginsburg, Sotomayor and Kagan--the only way to have one of the latter four assigning the majority opinion is if Alito, and only Alito, sided with them in a 5-4 decision.

As for the Court making it illegal over the whole country, perhaps not, but I wouldn't put it past Scalia to try (or at the least write it in such a way that lower courts would have to point to it as precedent in striking down other attempts at legalizing gay marriage, perhaps by pointing out why the "you can't take away rights once given" argument that the Ninth Circuit used doesn't hold water).