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Sunday, January 18, 2015

I'm Making a Prediction

which I usually try to avoid, because people, especially those on the Supreme Court, are habitually unpredictable. But, I decided to post the following, which is a comment a left at Balloon Juice on a post about the Supreme Court taking the appeal of the Sixth Circuit marriage cases:

I’d guess that June will see same-sex marriage as the law of the land. The 6th Circuit majority opinion did not address the issues the Court has said it wants addressed — in fact, it avoided addressing any 14th Amendment issues at all — and the Supreme Court’s own precedents make a finding for marriage equality the most logical outcome. (Given that logic and this Court have a somewhat adversarial relationship.) Not only Windsor, but Lawrence v. Texas, Romer v. Evans, Loving (and a couple of similar cases that all point to the Court’s reluctance to set definitions on who can be married — the court did not find, for example, that there is a “right to interracial marriage”), and Griswold are all stacked up in favor of marriage equality, under the heading “The government cannot interfere in intimate relationships between consenting adults without a compelling reason.” Since these cases involve a fundamental right, the Court will be able to examine them under heightened or strict scrutiny without identifying a new suspect class, which will make most of the justices more comfortable — they really hate finding new suspect classes.

Nor is it, in spite of Scalia’s protestations, a matter of discovering a new “right to same-sex marriage.” It’s a matter of the states lacking any rational reason for excluding same-sex couples from a right readily available to similarly situated opposite-sex couples.

Quite aside from the practical problems inherent in finding for the states — all those marriages are now invalid? And what about the states that have adopted SSM through legislative means, by referendum, or by the decisions of state courts? SSM would still be legal there — there is solid constitutional basis for a favorable decision.

The states’ right argument is dead in the water, even given Windsor. The part that opponents of SSM don’t like to mention when referring to Kennedy’s states’ rights language is the stipulation, which was quite plain, the state laws must conform to Constitutional requirements. He was also quite eloquent about the harm done by the bans to the children of same-sex couples.

I would guess, all else being equal and given Kennedy’s record on gay rights, that the decision will go toward striking down same-sex marriage bans. It’s even possible, since corporations tend to favor equal rights for LGBTs (it’s good for business), that the vote will be 6-3, with Roberts siding with the majority. Scalia will write a scathing dissent, with which Thomas will concur. Alito is a cipher to me — he may decide to stick with the corporate wing or go with the social conservative wing.

I also ran across this interview with David Boies on the question, which was rather comforting: he agrees with me, and adds a couple of insights that I hadn't thought of.


Also, it seems that most commentators not named Brian Brown feel that the GOP would really like this settled before the 2016 election, so they can concentrate on Benghazi!!1! or something.

4 comments:

Pieter B said...

Mr. Boies asserts that there was no objection to Florida's reaching marriage equality, but he omitted mention of the counties that suddenly did not have the human or financial resources to perform civil marriages in the clerks' offices. I find it really difficult to follow him to the conclusion that there'll be no objection, demonstrations, or push-back if the Supreme Court rules for a nationwide Constitutional right to marry for same-sex couples. Otherwise, a fascinating discussion, especially the moments when he talks about the possibility of a divided decision versus unanimity due to the fundamental Constitutional question. We all would like to see a 9-0 decision, but it's almost impossible with Thomas sitting there like a conservative lump and Scalia and Alito backing up to him at every chance he gets.

Hunter said...

Oh, the pushback has already started, in the form of the "religious freedom" laws making their way through the statehouses. And I'm sure when those get shot down (although I don't think that's a foregone conclusion -- it's going to take some really focused legal work), the "Christians" will come up with something else.

No, Scalia and Thomas will not vote in favor of overturning marriage bans; I'm not so sure about Alito -- I tend to see him as more of a corporatist than a social conservative -- but I'm not holding my breath on his vote.

Nikolaos said...

We had "religious freedom" laws here in Victoria (the Oz one, not the Canadian one) which made it legal for religious groups to discriminate against gays but not for gays to discriminate against the religious.

Hunter said...

Well, the problem they're going to have here is that if they write the laws too broadly, they can be used against just about any group. If they write them too narrowly, the laws are obviously the result of animus and will have a tough time in court.

In the meantime, it becomes obvious to the general public that they're trying to erase the boundary between church and state, which most people here don't want to happen.