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“The Most Significant Cases These 9 Justice Have Ever Considered, And Probably Will Ever Decide”

Jim Burroway

November 30th, 2012

That’s according to SCOTUSblog’s publisher Tom Goldstein:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

While the cases are historic, the justices are being called upon to judge them today:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

You’ve got to read the whole thing. He’s right: this is history before our eyes, whether it winds up being Dred Scott or Loving v. Virginia.



The Lauderdale
November 30th, 2012 | LINK

It’s “Dred” Scott, although that would indeed be dreadful…

Jim Burroway
November 30th, 2012 | LINK

I always get that wrong.

November 30th, 2012 | LINK

One thing it definitely *won’t* be, despite fears (or perhaps, in some cases, hopes) some have expressed: it won’t be another Roe.

Priya Lynn
November 30th, 2012 | LINK

“One thing it definitely *won’t* be, despite fears (or perhaps, in some cases, hopes) some have expressed: it won’t be another Roe.”

I think its rather poor judgment to say any future happenings or lack thereof is a certainty. Reminds me of all the Republicans I argued with before the election who assured me it was a certainty that Romney would win.

November 30th, 2012 | LINK

Goldstein is a little excited, and it shows in his thinking. Isn’t “most significant case” a hubristic claim? On a par with a Hollywood poster: “the most important movie of the year/decade/century” etc., etc.

And notice the little twist in his thinking – at the very same time he’s slobbering about “most significant case” as if that’s something wonderful, he’s slamming the rule of law that our civilization is based on: “five justices . . . can strip the people of power.” Which is like saying, OH FUCK this is the most AWESOME baseball game EVER . . . but shit, ONE REFEREE can decide the outcome, and that sucks the big one.” What?

Get a grip, Goldstein. Everything comes down to a majority of five in our system of government, if it gets pushed that far. That’s the rule of law, and apart from it you just have anarchy with tea partiers shooting off their guns and liberals shooting off their mouths. It’s just how the game is played, and what sensible alternative is there? A little more calm and patience needed here, guys.

December 1st, 2012 | LINK

“I think its rather poor judgment to say any future happenings or lack thereof is a certainty.”—In most situations, I’d agree, but this particular assertion is safe, and if you look at *why* the abortion thing has dragged on the way it has, it’s obvious this isn’t of the same sort. Roe v Wade pushed abortion into the spotlight, but there’s no real movement either way in public *opinion* on the subject, probably because the single biggest factor in which side a person takes is when they believe life to begin, a question that’s not only inherently unanswerable, but perhaps even nonsensical. There’s just no handle to grab, so to speak.

But on marriage… well, the biggest difference is that public opinion isn’t both centered and static. Like the other, it’s at about halfway, but it’s very clearly moving, consistently and fairly quickly. Is there really a reason, other than not wanting to declare any result impossible, to think that a court ruling would stop people who otherwise would, sometime in the next few years, decide that it’s OK for gay couples to marry after all from doing so? Nobody I’ve seen raise that fear has provided one, that’s for sure.

Priya Lynn
December 1st, 2012 | LINK

Your reasoning is sound Hyhybt, but I’ve often seen a possible future that seems extremely improbable happen, that’s why I try to make sure I never say any future event based on what people might do “definitely *won’t*” (or will) happen.

Ben In Oakland
December 2nd, 2012 | LINK

My guess is, they’ll decline to hear prop. 8. No political firestorm there.

Re DOMA: they’ll say that it is unconstitutional for the feds not to recognize valid marriages. I’m pretty sure that they’ll say the states have to recognize valid mariages performed elsewhere, but don’t have to allow it within their borders.

They will not do a Roe, however, and mandate marriage equality. However, I think that really depends on roberts.

Ben In Oakland
December 2nd, 2012 | LINK

BTW, although many will disagree with me on this, I really don’t want them to mandate marriage equality across the board, even thogh I think it’s the right thing to do and a goal I fervently want to see achieved. But I want to see it achieved from the bottom up, rather than the top down.

There are a number of reasons for this.

1) It gives the religious right yet another issue to exploit for twenty years or so, much as they have exploited abortion since 1971. They use it for fundraising, political power, judiciary packing, electioneering, you name it. They use it for weveyrthing to convince people to vote against their own interests and for the sake of those unknown and unknowable unborn babies. The progressive and moderate wings in this ocutnry really don’t need to give them another issue.

2) From the bottom up means that eventual victory will indeed be permanent.

3) It will require that gay people who want marriage, who want this vicious, stupid prejudice to end, will actually have to step up to the plate and come out, to live their lives as openly gay people, to be a part of their communities as gay people, to make that personal/political statement.

I have long maintained that the enemy is not the religious right and the antigay bigots. Ultimately, I don’t think they matter so much. The enemy is, and always has been, their enforcement mechanism– the closet. The closet is what convinces us to oppress ourselves, so they don’t have to dirty their hands doing so, and can spend their time, energy, and resources on other groups.

We’re never going to reach the people who are irretrievably poisoned by hate, by fear, by religious paranoia, by their wholly imaginary superiority, their lust for power and money and dominion, or their own very dark secrets. That’s the definition of irretrievably poisoned. So there is no sense worrying about them.

The only reason we are winning is that more and more gay people are standing up and being counted– to themselves, in their families, churches, communites, and in their political jurisdictions. When we hide, we’re invisible and easy to dismiss as the other. When we stand up, people have to make a choice.

Decent people– and i think the majority of americans are kind, decent people– realize that they can’t vote against people they know, love, and respect. They just can’t. Look at what has happened in so many Christian denominations by the simple facts of people standing up and demanding recognition.

If we want to eradicate this prejudice, not just in our country but in others, then ending the closet is the only path. And ending the closet is the long term goal.

December 3rd, 2012 | LINK


Great post.

Another thing that could happen is about fifteen or so states legalize it in the next ten years, another fifteen in the next ten, and the Supreme Court rules in favor of gay marriage protected under the Fourteenth Amendment in about 2035 to cover the rest of the states.

Ben In Oakland
December 3rd, 2012 | LINK

Thanks. I’m glad SOMEONE read it.


December 4th, 2012 | LINK

2035 is too far away. They won’t do it, but if the court *did* use the Prop 8 case to declare it a right throughout the country, that WOULD be a permanent change. It wouldn’t be one everybody would *like*, obviously, but it would nonetheless be permanent. Objectors’ numbers would, perhaps after a brief jump, continue to decline, and in the meantime people could actually take advantage of marriage a whole generation sooner. (Not that I agree it will take anywhere near until 2035 anyway, but any delay that is not absolutely necessary is time lost that can never be recovered, especially for those who die during the extra wait.)

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