What will the Supreme Court do on gay marriage?

12.10.2012, 10:07 AM

Andrew Sullivan has a nice round-up of current opinions here.

20 Responses to “What will the Supreme Court do on gay marriage?”

  1. Diane M says:

    I think Lemieux’s analysis sounds the most likely: “Tentatively, I would guess that the most likely outcome of the California case is that Prop. 8 will be struck down with a narrow opinion…”

    I am somewhat pessimistic and tend to think that the given the judges on the court now, it would be surprising if they ruled that same sex marriage is a constitutional right. I put a lot of faith in the opinions of Nina Totenburg of NPR.

  2. Maggie Gallagher says:

    To strike down Prop 8 on “narrow grounds” proposed by the 9th Circuit is so intellectually dishonest that if that is what the Court wished to do I think they would have refused to hear the case.

    I think Kennedy will overturn DOMA (perhaps joined by Roberts) and then uphold the right of states to refuse to accept gay marriage (i.e. uphold Prop 8).

    The victories this November for gay marriage at the polls make that outcome more likely. Justice Kennedy will likely see it as not at all unlikely voters will overturn Prop 8 soon and see that as a much better outcome than constitutionalizing gay marriage.

  3. Billy says:

    I agree that the decisive vote will be Anthony Kennedy’s. Ten years ago he wrote a beautiful and sweeping decision in Lawrence v. Texas that recognized the dignity of homosexual relationships. I would be surprised if, ten years later, he retreated from that sentiment. It is true that then there were only 13 state laws that needed to be struck down, whereas a sweeping decision this year would strike down 40. (Though, some of those forty states have all-but-marriage civil unions or domestic partnerships, so the impact in those states would be small.)

    Still, Kennedy and Roberts are conscious of their legacies. I suspect that they don’t want to be known as the justices who allowed “equal protection under the law” to become meaningless.

    I am told that some of President Obama’s advisors told him that he had a choice. He could be either the last Democratic President to be opposed to same-sex marriage or the first President to be in favor. I suspect Kennedy and Roberts are also thinking about their choices. Hence, I think that there may be a 6-3 or even a 7-2 majority on the court to establish same-sex marriage as a fundamental right.

    If the ruling goes against same-sex marriage, that will not stop progress, but it will draw out the battle and create two tiers of states in this country–the “free states” who extend equal rights to all their citizens and the “backward states” who do not. The latter grouping will increasingly come to be comprised of the exact membership of those states that enforced racial segregation.

  4. Maggie Gallagher says:

    Our impulse to predict what we will in fact know in a few months is interesting, but weird. (Here I am doing it too!)

    But as I read Lawrence, Kennedy is not going to want to prove that Justice Scalia was right it meant gay marriage.

  5. Victor says:

    Well, I’m sure Justice Scalia has been munching on his own foot, since his quote about Lawrence leading to same-sex marriage has been used in virtually every winning pro-marriage-equality brief.

    What all of those snippets that Andrew Sullivan collected miss is the most interesting fact – in 2nd Circuit Windsor decision, the Judges decided that homosexuality fits the requirements of a suspect category. 1st and 9th went with their precedents of using rational basis, but 2nd Circuit didn’t have such a precedent and having decided on suspect group, consequently, used “heightened scrutiny.” The Supreme Court has for now avoided touching this issue, because of the pretenses about conversion therapy working. But the country seems to have reached a consensus that conversion therapy doesn’t work, and so, I see the choice to take Windsor specifically as a positive.

    As for Prop 8, everyone seems to forget that this is the Supreme Court. They can decide to do pretty much what the New Jersey Supreme Court has done – and say that the states need to provide equal rights, without weighing in on the word “marriage.” If you read the New Jersey decision, it has all flowery language about equality and rights, but then without providing any specific or general reason they say it’s a choice for the legislature to call it “marriage” or “civil union.” That would provide almost equal rights all across the country – almost 312 million people(!). That may seem slow to people on the coasts, but it will be a tremendous thing for us living in between.

  6. Victor says:

    I’d also like to add, as far as Prop 8 goes, the discussion seems to focus on the issue whether or not same-sex marriage is a fundamental right, while completely ignoring the part of the case involving the animus against gays and lesbians. The unconstitutional animus that was prohibited by Kennedy’s Romer decision.

  7. Billy says:

    Victor, at the heart of both Judge Walker’s and Judge Reinhardt’s decisions in the Prop 8 case is that the opponents of same-sex marriage acted out of animus. Indeed, Judge Reinhardt’s decision is simply an application of Romer to the circumstances of Prop 8. So I agree that animus is an important aspect of any consideration of the case. One reason Justice Kennedy is in such an interesting position is that Judge Reinhardt simply extended Romer, which Kennedy wrote. Is Kennedy going to say Reignhardt went too far? Or is he going to say his interpretation is correct? Or will he fashion an entirely new reason, one closer to Judge Walker’s more expansive ruling, to strike down Prop 8?

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  9. Jack says:

    Maggie, could you be more specific about what in Lawrence leads you to say that you think Kennedy won’t want to see Scalia proven right?

  10. BobN says:

    Put aside for a moment your goals vis-a-vis gay rights and look at the principles involved.

    Maggie bemoans a decision based on “narrow grounds”. And what is that narrow ground? That the people, via referendum, cannot take away the civil rights of a disliked minority. That’s the sort of “narrow ground” that I would think those who worry about the coming domination by pro-gay forces would be quite attached to. If you’re so certain that coming generations will find your ideas marginalized and your lives encumbered by the normalization of homosexuality, surely you wouldn’t want to undermine the universal application of civil rights, even when those who seek to exercise those rights become unpopular.

  11. Kevin says:

    The US Supreme Court isn’t going to play the word game that “man-woman only” marriage supporters want it to play, in California. If the state grants all the rights of marriage, but simply wants to call it two different things depending on the gender makeup of the couple, SCOTUS is going to balk. With good reason, obviously. What public benefit is served by calling too identical things different names? Why not call it “marriage” for procreative straight couples, and something else for non-procreative straight couples? To argue over a simple word is going to offend the court, I think.

    I think the SCOTUS will be more receptive to marriage equality than many people think. Scalia is already on record as saying it isn’t possible to discriminate against same-sex couples if the state acknowledges the validity of their sexual relations, which it has. Roberts doesn’t want to be the Chief Justice on whose watch another disastrous discriminatory Supreme Court decision is fashioned. Kennedy has already demonstrated an understanding that gays are people, too. If you don’t de-humanize gay and lesbian people, it’s hard to support discrimination against them. There is ample opportunity for a 5-4 decision legalizing same-sex marriage nationally.

    The Supreme Court has a pretty dim view of limitations on marriage. Once you’ve ruled that even convicted murderers on death row, and with no chance of even conjugal visits (so much for the procreation argument), can’t be prevented from marrying, you look pretty foolish saying law-abiding gay and lesbian couples, raising children, can be.

  12. The Kangaroo says:

    The possible outcome postulated by the Vatican mouthpiece Gallagher might be accurate. It would be a sort of Dred Scott decision where in some states rights of LGBT couples are honored and in others they are not. This would lead, of course, to mass exodus from Red States of talented and plucky people, thus accelerating the collapse of the falsely labeled “traditional” marriage system.

  13. BobN says:

    Kangaroo might be unto something, but what is the military going to do with service members with same-sex spouses? Will the red states try to ignore the marriages of those who volunteer to lay down their lives for the country????

    My guess is yes and that it won’t last long before it gets slapped down.

  14. I agree (partially) with Maggie (Hell might freeze over) that Roberts will vote with the majority to strike down DOMA. We will probably see a rerun in 2015 (maybe 2014) with a challenge to full faith and credit.

    I don’t see anything intellectually dishonest about sustaining the Ninth CCA on Prop 8. BTW, Evan Wolfson penned an interesting OpEd in the NY Times at http://www.nytimes.com/2012/12/11/opinion/for-marriage-equality-the-works-not-just-in-court.html

  15. Maggie Gallagher says:


    “The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it.”

    This is Scalia’s dissent in 2003.

    Kennedy is known to dislike Scalia’s rhetorical style. I am saying he will be reluctant to want to prove that Scalia was right about Lawrence. This is not an argument from legal principle, but on judicial temperament.

  16. Billy says:

    Maggie, I think that Kennedy is very proud of Romer and Lawrence and that he will be happy to prove that Scalia was correct that the same principles underlying both Romer and Lawrence would naturally extend to a decision that enunciates a fundamental right for same-sex couples to marry. The beautiful thing about the Lawrence decision is that Kennedy recognized that gay people are fully human people whose relationships are also fully human. Scalia’s conception of homosexuals is quite different.

  17. fannie says:

    I think it would be kind of a sad legacy for the civil rights of some people to hinge on one man’s judicial temperament and ego, rather than on legal merits.

  18. I’ve often found Maggie (and other NOM staffers’) read on SCOTUS to be very interesting. Not even because I disagree, which I most always do, but because some of the suggestions strike me as the sort of things we should be working to decrease in order to preserve our judiciary.

    For instance, NOM, in the wake of more favorable elections, used to tout the idea that SCOTUS reads polls and watches election returns. This certainly has some degree of truth, as the justices are human beings and (hopefully) informed citizens. But it’s not something that I, if running an organization so focused on legal matters, would exalt as some great thing. I would hope that most of us would seek a court that bases its decisions on proper application of law and not the latest popularity contest (particularly on a minority rights matter).

    And now we have Maggie suggesting that Kennedy is going to go against fairness largely because he doesn’t want to prove Scalia right? That’s just a silly thing to say. I would hope that any of the nine members of the court have a higher standard than that.

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  20. MarcoD says:

    SCOTUS is being asked to decide if the lower court ruling on Prop8 is legally valid and constitutional. It clearly was so I am betting the ruling will stand and California will resume mariage equality.

    DOMA violates state rights today that it didnt when it was signed. Times change and the law does too, it needs to go and probably will.

    NOMs own John Eastman’s insane and cruel attack on Justice Robert’s kids may very well have sealed the fate of NOMs agenda.