Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyJune 25th, 2013
The marriage decisions are almost certainly going to be announced tomorrow. There are only three rulings as yet unpublished, United States v. Windsor (DOMA3), Hollingsworth v Perry (Prop 8), and Sekhar v. United States (a case involving the definition of terms in the federal extortion law), and it seems unlikely that tomorrow will be devoted to Sekhar.
By now all the pundits have read their crystal balls and declared their expectations of the results – and the result of the results. Now it’s your turn.
But first, here are mine:
DOMA3 – I’ve having trouble fathoming much support for this steaming pile of law. Liberal justices will likely find it offensive in its blatant discrimination and conservative justices will likely find the states rights arguments to be compelling. My prediction is quite a bit out on the limb, but I’m going for 8-1 overturn. Scalia, of course, believes in the original intent of the Constitution – as revealed by the traditions and teaching of the Catholic Church – and will discover that the founding fathers intended that family law be left to the states other than when Teh Ghey is involved.
Reactions:
* – My friend James will get married in New York (his fiance is Australian).
* – Politically minded Democrats, Liberals, and moderate Republicans will celebrate.
* – Most people will say, “huh” and go back to watching TV.
* – Republican leaders will say that now that the courts have decided, it’s time to move on.
* – The wackadoodles will scream and yell a bit before going back to Obamacare, abortion, and Hollywood.
Prop 8 – I think that SCOTUS will find that the proponents do not have standing to defend a proposition once the duly elected state representatives have opted not to appeal (I find it odd that the decision whether or not to appeal a ruling should be left to anyone other than the state). And that may be the end of it: Prop 8 is overturned and nothing else changes on the state level. However, since I’m in a gambling mood I’m going back out on my limb. I think that they will also rule on the merits of the case. And of all the possible outcomes (there are several) I think that the courts will rule that should a state offer all of the rights and benefits of marriage to same-sex couples, it cannot create a nomenclature designed for no purpose other than to designate same-sex couples to be of lower status. They will also be clear that they are not ruling on the constitutionality of marriage bans in general, just in whether a state can offer second class status if they do offer rights.
Reactions:
* – Politically minded Democrats, Liberals, and moderate Republicans will celebrate.
* – Most people will say, “huh” and go back to watching TV.
* – Republican leaders will say that now that the courts have decided, it’s time to move on.
* – Wackadoodles will declare that they were right all along that civil unions really are the evil militant homosexual activists’ way to force gay marriage down the throats of the people. They’ll call for a Federal Constitutional Amendment, which will get no traction. And they’ll declare this decision the ‘Roe v Wade of the 21st Century’ … before going back to Obamacare, abortion, and Hollywood.
* – We begin the long hard slog of reversing bans, state by state.
* – Within a few years, Olson and Boies will bring a lawsuit in another state and begin the process all over again. This time we win big.
What do you predict?
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occono
June 25th, 2013
I predict Sekhar will be released first to the loud declaration that “Nobody cares!”
Tony
June 25th, 2013
What I don’t understand about the Prop 8 case is if the state of California says that someone is allowed to defend them, then why does SCOTUS get any say at all? If I give power of attorney to someone, they can sue on my behalf. The California Supreme Court says that proponents of propositions are allowed to defend laws if the state does not. The federal government is mostly made up of whoever the states send to Washington. How they get there is a state matter. Or am I just completely missing something?
RobNYNY1957
June 25th, 2013
I suspect (and hope) that the damage-control-in-advance=of-the-damage from the right wing indicates that there has been scuttlebutt that the marriage cases are going against them. Plus, there was Scalia’s strange remark last week that courts should stay out of moral issues, something I don’t think he would say if his side was in the majority.
JAD
June 25th, 2013
I’m not with you on your “limb” for Prop 8.
I think both will ultimately be “wins,” but not slam dunks. I think we’ll see very narrow rulings and specific language that limits the repercussions as much as possible.
Rick2L
June 25th, 2013
My prediction: The quisling Scalia will be absent.
P.S. Yes Tony you’re missing something. A state can not make legal what is unconstitutional, and it is the constitution which decides what parties my bring suite in federal court.
gary47290
June 25th, 2013
How about this resolution: SCOTUS reverses the district court because it is not a Federal issue, citing Baker v Nelson as still the governing precedent. Yes, it’s a wimp out, but it keeps SCOTUS out of a political battle they can’t win.
Result: Prop 8 remains in effect, and the Supreme Court politely tells California, “You created this mess, clean up after yourselves. WTF were you think that we would take the heat for your stupid decision in November 2008.”
CPT_Doom
June 25th, 2013
gary47290 – the problem is Prop 8 cannot be reconciled with Romer v. Evans so I think the punt is the likeliest outcome on that case. I can’t see DOMA standing.
Ben in Oakland
June 25th, 2013
For myself, I can’t imagine prop 8 will be decided on the standing issue. Ca. SC said they had standing. Tere’s no federal issue. It may be decided on the DP issue– that would be more likely -any other basis.
I really can’t imagine DOMA being supported. That would make our Supreme Court as useful and beneficial as congress.
Hyhybt
June 25th, 2013
The appeals court asked the state court for its opinion on whether the proponents had standing to appeal. It wasn’t a binding ruling by the state court; the question was basically just asking advice which the appeals court was then free to follow or reject.
Basically it was a way to waste a year.
As for the question… while the predictions here seem likely (with one modification: “We begin the long hard slog of reversing bans, state by state” should read “continue” rather than “begin”) I’m holding out hope for a full win. Particularly if, as you suggest, they address the merits despite declaring there was no standing.
John D
June 25th, 2013
On Prop 8:
I don’t think the court can both find the Prop 8 defense lacks standing and rule on the merits of the case. To rule on the merits where there is no standing goes against jurisprudence.
If Prop 8 is tossed out for standing (and I don’t think it will be, or we would have heard by now), they will not rule on the merits. Certainly there are four votes for a broad ruling permitting marriage equality. The question is only how narrow does it have to be to get to five?
Gary47290,
The Prop 8 defense brought up Baker. Justice Ginsberg made it clear why it is not precedent. It’s not just Romer that makes Baker irrelevant.
Mark F.
June 25th, 2013
Let’s see. DOMA reversed 6-3 with the liberals joined by Kennedy and Thomas. Kennedy and Thomas write a separate concurring opinion citing Federalism, as opposed to equal protection. The dissent will be Roberts, Alito and Scalia.
Prop 8 case disposed of on some standing issue 5-4. Impact TBD. Scalia, Thomas, Roberts and Ginsberg dissenting. Numerous opinions.
Mark F.
June 25th, 2013
The court could possibly rule that the Prop 8 appeal should not have been accepted and the original Walker decision stands, but only the original Plaintiffs are entitled to relief — and nobody else.
jpeckjr
June 25th, 2013
Here’s the limb I’m going out on: DOMA3 will be ruled unconstitutional by a 7-2 or 6-3: Scalia, Thomas, and/or Alito in the dissent. Their dissent shall be based on the theory that DOMA applies only to Federal statutes and Congress has the authority to determine who is and is not covered by Federal statutes. The majority opinion will be based on equal protection and full faith and credit theories.
Prop 8 will be ruled unconstitutional on a 5-4 — Scalia, Thomas, Alito, and Roberts in the dissent. The dissent will be based on the theory that Prop 8 was properly passed according to the laws of CA and there is no federal jurisdiction. The majority opinion will uphold the district and appeals courts theory that once a right is given, whether by legislation or judicial ruling, it cannot be rescinded, even by the voters. The ruling will apply only to California. On standing, both sides will defer to the Calif Supreme Court’s advisory.
At least one dissenter will say “See, I told you back in “Lawrence” that if we let homosexuals have legal sex, they’d want to get married someday! But, noooooooooo, you wouldn’t listen, would you?”
I know. My limb is hanging over a cliff!
emcee_cubed
June 25th, 2013
I’m going with a 7-2 ruling striking down DOMA, with Thomas and Alito dissenting. I think Scalia is slightly more actually committed to his Federalist beliefs, whereas Thomas and Alito have never met a non-corporation they didn’t vote against. (Though it would surprise me if Thomas voted on a different side than Scalia. I’m not sure he’s ever had an original thought…)
Prop 8 is tougher. I think that we would have heard by now if it was going to be decided on standing. Guessing a narrow ruling affirming the Appellate ruling and applying only CA, due to the nature of the case, but leaving the door open to other broader cases in the future. (I’d love a broader ruling, or even an 8-state solution, as I am in one of the 8 states, but I don’t see it with this case and this Court.)
Charles
June 25th, 2013
After trying to read all this all I can say is I have one damn big headache. I will just wait until the court rules and then try to make some sense out of it all. What is obvious, is that we are winning and will continue to win. Let’s just don’t get damn arrogant about it and respect the right of others to respectfully disagree.
Justin
June 25th, 2013
I suspect once DOMA’s section 3 likely overturned, we’ll see a seperate lawsuit begin that challenges section 2 that prevents states from having to recognize legal marriages from other states. Once section 2 is gone, that paves the way for the remaining gay marriage bans to fall like dominoes as there won’t be any legal reason to keep defending those laws.
Richard Rush
June 25th, 2013
I’m pinning my hopes on the fact that the decisions are being released on the tenth anniversary – to the day (June 26) – of the Lawrence v. Texas decision. Is it a coincidence?
http://www.goodasyou.org/good_as_you/2013/06/marriages-cases-to-be-released-on-lawrence-v-texas-anniversary-ten-years-to-day.html
Mark F.
June 25th, 2013
“Though it would surprise me if Thomas voted on a different side than Scalia. I’m not sure he’s ever had an original thought…”
That’s a myth. They are more frequently on opposite sides than you might think.
But did you know that all justices vote on the same side as any other justice much of the time? That’s because most cases don’t break along ideological lines and there are lots of 9-0 decisions.
Kevin F
June 25th, 2013
I predict that regardless of outcome I will have a martini tomorrow night.
I think both DOMA and Prop 8 will be punted based on issues of standing.
Stefan
June 25th, 2013
“The court could possibly rule that the Prop 8 appeal should not have been accepted and the original Walker decision stands, but only the original Plaintiffs are entitled to relief — and nobody else.”
Yes, BUT, the governor and attorney general of California were named as parties in the case, and as a result it would apply statewide regardless.
Ben In Oakland
June 25th, 2013
Stefan– why does that make a difference?
RobNYNY1957
June 25th, 2013
Section 2 of DOMA doesn’t really change much in the way that states recognize each other’s marriages. The laws and policies are a real mishmash. Depending on which two states are involved, it can be constitutional, common law, statutory, or based on concepts of comity and public policy. I suspect it’s just a matter of time before some gay marriage state refuses to grant a divorce to a straight couple who were married in an anti-gay marriage state, based on comity and reciprocity.
Stefan
June 25th, 2013
Ben,
Because it would give them the power to apply the ruling statewide.
Sir Andrew
June 25th, 2013
DOMA will be punted due to standing (I think that’s why they took this case anyway; they wanted to make it clear that Congress cannot defend a law in court if the Executive has declined the defense. That’s why they had the separate brief prepared on just this matter. Case law and the Constitution both deny Congressmen this right.)
On the Prop 8 thing, there is no standing or jurisdiction, but they might ignore that to rule on the larger questions. Roberts is desperate on this issue that there not be a 5-4 vote. So he may have crafted a ruling that is weaker than we’ve hoped for in order to get more support for it. I predict a 6-3 ruling that the public can’t vote to take away rights that have been granted. This will give both Californians and Hawaiians marriage equality. They might go slightly bigger and hit the entire ninth circuit, but I don’t think so.
Stephen
June 25th, 2013
After today’s disgraceful ruling in the affirmative action case I think all bets are off.
Ryan
June 26th, 2013
Wanna get my prediction in before it’s all over…
I agree with Stephen that this recent spate of right-leaning decisions has me worried, but I think sec 3 of DOMA will be invalidated 5-4, with Kennedy siding with the liberal justices. I’m stunned by those who think there’s a even a tiny chance of Thomas voting our way. I thought Roberts might be persuaded, but his pointed questions during the arguments made it seem like he thought DOMA was constitutionally okay. He kept asking if it would be legal for Congress to pass a law creating a federal definition of marriage, kind of a reverse-DOMA, and he clearly thought that Congress could indeed do that, which means he believes Congress can do the opposite as well.
As for Prop 8, I believe the 9th’s very narrow ruling will be upheld, either 5-4 or 6-3 with Roberts joining Kennedy and the liberals. California will be our next state to have marriage equality. The others will be a slow process over the next couple of decades.
Timothy Kincaid
June 26th, 2013
Alas, SCOTUS did not go quite as far out on my limb. But it’s a happy day nonetheless
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