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.