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News and commentary about the anti-gay lobbyJanuary 16th, 2015
The U.S. Supreme Court has agreed to hear the four marriage cases in which the Sixth Circuit turned back an effort to bring marriage equality or marriage recognition in Kentucky, Michigan, Ohio and Tennessee. According to today’s order: (PDF: 43KB/2 pages) the Court intends to keep the arguments focused on two narrow questions:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.
Lyle Denniston at SCOTUSblog believes that oral arguments may take place in late April with a final ruling “probably in late June.” He adds:
Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.
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Sir Andrew
January 16th, 2015
I wonder why the Fourteenth Amendment is being used for the second question rather than the far more relevant Article Four, Section One—Full Faith & Credit.
I predict that we will win this totally with a vote of 7-2 at the worst. Because this digs into the fundamental meanings of the Constitution, it’s entirely possible that Scalia will swallow his bile and vote with the majority. And since Thomas goes where Scalia leads, that would be a 9-0 ruling. I think that for this issue Roberts wants a vote as close to unanimous as he can get. And I agree with him.
I also predict that the ruling will be released, as the Court has done every time in the past with one of our victories, during the week before Pride weekend.
Victor
January 16th, 2015
Sir Andrew – Because the 14th incorporates the implication of Article IV-1 through the Due Process clause. Choosing the 14th requires several answers.
If we assert marriage is a fundamental right then defendants must argue (a) gay marriage is different in some way and therefore not a fundamental right, (b) gays are somehow flawed in some way which disqualifies them, as a class, from marriage, (c) there is a compelling state interest to restrict gays from marriage.
(a) fails on its face
(b) is supported solely by junk science, animus and “sincerely held religious claptrap”
(c) will only succeed in the abstract, not in the specific: the state may argue it is in its own interests to respect the democratic or legislative purview of its own laws. But as marriage itself is a fundamental right this argument must withstand strict scrutiny. It is unlikely SCOTUS will accept the implied argument that a state is justified in withholding a fundamental right to protect its sovereignty as this would essentially gut federal authority over anything.
Scalia, Thomas and Alito will argue the 14th doesn’t apply because the litigants do not belong to an established, protected class (same argument as Louisiana).
The balance will likely see things differently.
Priya Lynn
January 16th, 2015
Sir Andrew said “I predict that we will win this totally with a vote of 7-2 at the worst. Because this digs into the fundamental meanings of the Constitution, it’s entirely possible that Scalia will swallow his bile and vote with the majority. And since Thomas goes where Scalia leads, that would be a 9-0 ruling.”.
I didn’t think I’d see anyone this optimistic about this.
eric
January 17th, 2015
In addition to Victor’s reply, Sir Andrew, the section of DOMA suspending ff&c to same sex marriages is still the law of the land.
eric
January 17th, 2015
One more thing- a challenge to that part of DOMA would necessitate a debate over whether Congress has a right to suspend ff&c and it is doubtful the Courts involved or the lawyers who brought the original challenge wanted to bring a fight over Congressional powers into the case.
Priya Lynn
January 17th, 2015
Very interesting Eric. You make me think that part of “D”OMA must be unconstitutional and the court is shirking its duty by not addressing that.
Ben in oakland
January 17th, 2015
You’re all far more optimistic than I am. I can trust any of these people.
This is one of the few times in my life that I sincerely hope that I am as wrong as wrong can be.
Ben in oakland
January 17th, 2015
Sorry. Can’t trust.
Jim Burroway
January 17th, 2015
We should start a pool.
I predict 6-3 in favor of marriage equality, with Roberts joining the majority for two reasons:
1) it’ll still be 5-3 without him, and he won’t want to be on the wrong side of this.
2) By being in the majority AND as chief justice, he will have the prerogative of writing the majority opinion. That way, he can step in and limit whatever “collateral damage” he can on issues like heightened scrutiny, etc., that Windsor hinted at opening up.
Ryan
January 17th, 2015
I think it will be 5-4, exactly mirroring the Windsor ruling.
Eric Payne
January 18th, 2015
Against us: Scalia, Thomas, Alito
With us: Ginsburg, Breyer, Kagan.
Maybes: Kennedy, Sotomayor, Roberts.
Kennedy has supported expansion of Constitutional protections in the past, but is also a supporter of states’rights.
Sotomayor has stated in the past there is no Constitutional right to “gay marriage” — but that statement was made when the President (who appointed her) supported “traditional” marriage. He’s “evolved” into a supporter. Has Sotomayor?
Chief Justice Roberts? Who knows? He’s been known to cast votes based on his view of historical assessment of the decision.
It’s going to be a close one. I’d like to think we’re beyond the “close one” of a Dred Scott or a Bowers v Hardwick, but who knows?
(Now… If he were a man of integrity, Scalia woulld decide with us, as he noted in his dissent in Lawrence. Since Thomas always follows Scalia… that’d make it 5-1-3. Roberts would then come down with his two senior conservatives. 6-1-2. Kennedy would join in, 7-1-1, at which point, either Sotomayor or Alito (or both) are less likely to “stay out there,” solo.
Conceivably, it could be a unanimous decision in favor of marriage equality, completely depending on Scalia.)
Priya Lynn
January 18th, 2015
I think anyone thinking Scalia is going to vote for marriage equality is severely deluded.
Eric Payne
January 18th, 2015
Prius,
I said IF (emphasis added) Scalia was a man of integrity.
But he’s not. Scalia will use “tradition” and “states’ rights” to dissent.
Nathaniel
January 21st, 2015
Let’s not forget this is a 2-question case. We could see 6-3 in our favor on recognition and 5-4 on licensing (hopefully in our favor, but as I said elsewhere, the recognition question gives Kennedy an out).
Spunky
January 21st, 2015
I’m thinking 5-4, although I really wish that in this day and age, with the number of liberal AND conservative judges ruling against marriage inequality for the exact same reasons, that the decision would be closer to 9-0.
But anyway, I’m predicting 5-4 in favor of marriage equality. And maybe 7-2 against the interstate ban thing.
Richard Rush
January 21st, 2015
I could see 6-3 as Jim Burroway predicted.
Since only four votes are required for the court to grant certiorari on a case, why didn’t they accept one of the previous appeals if they had four votes against marriage equality? One reason may be that they knew they didn’t have five votes to overturn the Circuit Court decision(s).
If the Sixth Circuit’s decision had favored marriage equality, doesn’t it seem likely that SCOTUS would have declined to grant certiorari as they did on the previous appeals? And if all the Circuit Courts eventually ruled in our favor, why would an appeal on just one of them be accepted to hear so late in the game ~ after thousands of same-gender marriages had occurred? This would seem to make SCOTUS look very irresponsible.
Then there is the issue of the justices’ legacies. All the current justices are surely aware that the multitude of lower court judges who have already ruled in favor of marriage equality represent the future of the Supreme Court.
I tend to believe that SCOTUS orchestrated this drawn out process with its multitude of pro-marriage rulings in order to weaken the inevitable attacks on the court that would occur after a 5-4 decision if so many Circuit Courts had not weighed in. The process has allowed more time for public opinion to shift as one judge after another has produced a compelling written decision, and all of them are now part of the official record.
Priya Lynn
January 22nd, 2015
Richard said “Since only four votes are required for the court to grant certiorari on a case, why didn’t they accept one of the previous appeals if they had four votes against marriage equality? One reason may be that they knew they didn’t have five votes to overturn the Circuit Court decision(s).”.
Very compelling point Richard. You make me a little more hopeful that the court will vote for marriage equality.
Timothy Kincaid
January 22nd, 2015
I’m an optimist on this as well. I’m with Jim on a 6-3 split.
I know this will sound crazy (and I’m not sure I buy it), but I see the possibility of a 7-2 result with Alito coming around. (Scalia would only vote for equality if the Pope himself asked it as a personal favor – or if his son finally came out – and Thomas just does what Scalia tells him).
Victor
January 24th, 2015
It occurs to me there is a way we could still lose and win at the same time.
One could argue that the 14th does not absolutely require states to allow marriage equality IF there is a compelling state interest to forbid it. The court could rule, therefore, that the 14th does not find an absolute right, but at the same time show none of the reasons provided to date meet the compelling state interest test. This would at least establish a baseline of rigor for any challenges to marriage equality and allow the matter to be decided at the district or circuit level. Such an approach would be mostly consistent with the 6th’s decision in that there doesn’t seem to be a legitimate reason for the ban, and would still allow states to pursue bans if they meet the criteria of the ruling.
The same logic could be applied to whether states must recognize marriages performed elsewhere: there must be a compelling state interest not to do so.
Such a ruling might have the added benefit of laying the groundwork for broader anti-discrimination challenges in the future: you are free to discriminate but you must show your law doesn’t fall afoul of a, b, c and d.
Richard Rush
January 25th, 2015
Victor, your scenario would be seen as an eleventh-hour gift from a god to all of the anti-gay outfits across the nation. They could extend their lives by appealing for donations to fund an urgent mission to invent a new-and-improved compelling state interest for reinstating a ban on marriage equality. They could milk this for years.
It would be interesting to see if any one state is so unique that a compelling state interest could be valid in that state and no other. If not, then it would seem that any state could choose to invoke it, which would then put us right back into the situation that we now appear to be emerging from.
Victor
January 25th, 2015
Richard – I posit the scenario as possible, not ideal.
By dismissing a general set of scenarios by which states might claim a compelling state interest our opponents would be hard-pressed to find something new which wouldn’t fall into those categories. I am consoled by the reality all our opponents’ arguments are truly based on wanting some way of claiming gays are second-class citizens and that there is no conceivable way they could find a compelling state interest which doesn’t make this abundantly clear.
This doesn’t mean they wouldn’t try, which isn’t necessarily a bad thing: it further marginalizes their position, forces them to expend resources on a lost cause, etc. Eventually people will lose interest and the matter will be settled in fact if not as definitively as we would like.
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