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 lobbyDecember 23rd, 2014
The Supreme Court has scheduled January 9, 2015, as the date on which to consider whether to hear appeals in five marriage cases. The states from which these cases originate are Tennessee, Kentucky, Ohio, Michigan and Louisiana.
In Louisiana a federal judge ruled to uphold the anti-gay marriage ban, and the other four are in the Sixth Circuit, where the appeals court overturned federal judges who had ruled for equality.
We will not know until next month whether SCOTUS will hear any marriage appeals, but if they do so, it will only be those which are requesting that marriages be allowed. In other words, the court has not scheduled for hearing any appeals which could reverse a state’s current practice of allowing same-sex marriage.
I think that this, when taken with past appeal and stay decisions, may suggest a predisposition on the part of the court to move in the direction of equality.
However, the court has also illustrated a lack of willingness to rule directly on the issue. And this brings up another possibility – though probably not a likely one.
On January 9th – or some point thereafter – the court could take steps to reverse the Sixth Circuit decision without taking up appeal. They could return the cases from Kentucky, Tennessee, Ohio and Michigan to the Sixth Circuit Court of Appeals with instruction that the court more carefully consider or weigh some aspect of the case.
But whichever direction they go, it now seems encouraging that next month will prove to be a rather big step (likely forward) in the marriage movement.
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Hunter
December 24th, 2014
Good point about remanding DeBoer and the other 6th Circuit cases back for further consideration — that’s not one I had thought of. (Not that I spend a lot of time lately trying to guess what the Court will do — it seems to depend on what Anthony Kennedy had for breakfast.)
But quite honestly, as much as I hate to count chickens, etc., I would be flabbergasted if the Court eventually ruled against marriage equality — although this is the Court that gave us “Corporations are people” and “Belief trumps fact,” also known as Citizens United and Hobby Lobby.
Priya Lynn
December 24th, 2014
I think the odds of the court ruling in favour of equality are only slightly better than even.
Mark F.
December 24th, 2014
Priya,
It would be rather odd for the court not to grant stays, allow thousands to get married, and then rule against equality. But I suppose it’s possible.
Priya Lynn
December 24th, 2014
Well Mark, I’m a pessimist at heart.
Priya Lynn
December 29th, 2014
But let’s not forget that Sontomayor is on record saying there’s no constitutional right to same sex marriage.
Priya Lynn
December 29th, 2014
I’m not real confident she’s going to back away from that statement.
Richard Rush
December 29th, 2014
My belief tends to be that SCOTUS has a 5/4 or 6/4 majority to mandate national marriage equality, but has made a calculated decision to avoid enabling the opponents to scream, “one (or two) unelected black-roded tyrannical judge has decided to ignore the will of the people, and ram homosexual marriage down the throats of over 300 million citizens of the United States.” This calculated approach is resulting in a multitude of written judicial decisions at the Federal and State levels, each articulating a case for marriage equality in their own way, and each one adding to the public perception of legitimacy for marriage equality.
Furthermore, this multitude of decisions at the Federal level are from judges that represent the future of SCOTUS, and thus provides a strong indication of how a future Court would likely rule (depending partly upon who appoints them). And, assuming that the current court will rule on the issue at some point, it might even make a current fence-sitting judge think about how s/he will be characterized in the history books.
Richard Rush
December 29th, 2014
That should have been “5/4 or 6/3“
Timothy Kincaid
December 29th, 2014
Richard, but think we are on the same page.
I don’t entirely dismiss a 7/2 possibility, based on the stay request results, but that would be pretty amazing.
Priya Lynn
December 29th, 2014
So, what about Sotomayor? After saying in the confirmation hearings she didn’t believe there was a constitutional right to same sex marriage you think she’s going to reverse herself and say “I lied about that” or “I didn’t know any better at the time.”?
Eric Payne
December 30th, 2014
But SCOTUS isn’t making any decision about marriage equality.
They’re deciding to look at a list of cases, and determining if they might, later, take on one (or more) of them.
enough already
December 30th, 2014
The simple fact that Priya and I are in agreement on this should strike terror in the heart of every person reading these comments.
Seriously, there’s absolutely zero reason to believe that we have five Justices on ‘our side’ here.
We might, possibly, have five Justices who are willing to ‘create’ a new right on the basis of the principles they ‘find’ in the US Constitution.
I wouldn’t bet the farm on it.
Priya Lynn
December 30th, 2014
In case it wasn’t clear, I’m directing this question to you Timothy and Richard:
So, what about Sotomayor? After saying in the confirmation hearings she didn’t believe there was a constitutional right to same sex marriage you think she’s going to reverse herself and say “I lied about that†or “I didn’t know any better at the time.�
Timothy Kincaid
December 30th, 2014
PL,
I don’t think she will use any of the language that you have selected for her. In fact, I doubt that she will say anything whatsoever other than “I concur with the majority position”.
Priya Lynn
December 30th, 2014
Timothy, you’re taking me a little more literally than I intended. What I’m getting at is how do you think she would defend changing her position?
And I’m not asking you if she will or won’t defend such a change in position, but rather how she could.
Timothy Kincaid
December 30th, 2014
PL,
I don’t think she will defend it so “how she could” is moot.
Priya Lynn
December 30th, 2014
No, its perfectly relevant, you just can’t think of any way she could justify such a reversal so you’re making a pathetic excuse not to respond.
Priya Lynn
December 30th, 2014
Shameful.
Richard Rush
December 30th, 2014
Priya, if Sotomayor is pressed to respond, perhaps she will say that, over time, she ‘evolved’ on the issue, just as President Obama said. And, perhaps she may go further by citing some of the well-reasoned written decisions by various Federal court judges.
I don’t think it’s reasonable to insist that a judge, after they are appointed, be barred from becoming more educated or enlightened, which may then sometimes shift their position on an issue. . . . But of course I wouldn’t say that if a judge shifted to a position that I disagree with. ;)
Priya Lynn
December 30th, 2014
Richard, if she decides to reverse herself she may make such statements, that may be the only sort of excuses she could offer. But they would be just as disingenuous as the statements Obama made regarding his repeatedly shifting positions on marriage equality. Those favouring marriage equality seem to take her support as a given, I think that’s unduly optimistic.
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