1. rroberts says

    It’s still all just speculation. Nobody knows how this will come down, and the best we can do is hope that there are enough enlightened justices who will do the right thing.

  2. gr8guya says

    I hope – fingers crossed – that the Justices will see the rapid change in public opinion and not want to be on the wrong side of history.
    But, they may be able to weasel out of that, too.

  3. Eddie says

    I expect the Supreme Court to throw out Prop 8 on the standing issue bringing same sex marriage back to California and to strike down DOMA. No sweeping ruling that makes same sex marriage legal nationwide.

  4. JONES says

    Nothing SCOTUS could do on Prop 8 would please me more than to see Roberts actually step up and become the Chief Justice this country needs by becoming a conservative voice for equality. Political affiliation be damned take this opportunity to show Prop 8 for exactly what it was, an attempt to enshrine discrimination in a state constitution by excluding a minority class of citizens from equal status under law. If Roberts does then Kennedy will also, Prop 8 goes down 6-3.

  5. JONES says

    Or they could be spineless squid beholding to current conservative power brokers and weasel out of it on a technicality (which BTW can be found in almost ANY court case).

    The tide is turning SCOTUS. You wanna surf the crest or get dragged to the bottom?

  6. kp05 says

    Prediction (echoing many):

    Section 3 of DOMA goes down, states decide who the federal government sees as “married”
    Throw out Prop 8 on standing, California only gets gay marriage

    Aftermath prediction:

    NOM moves the goalposts (yet again) and declares “victory” because gay marriage isn’t legal in all 50

  7. Dave says

    Contray to most every opinion I have heard or read purporting that SCOTUS will deliver rulings on these cases pertinent to only to either California or the States allowing gay marriage, there were pertinent comments during the Prop 8 hearing that HIGHLY-SUGGEST that the Court will issue a wide-scope decision that the right for gays to enter into marriage is a constitutional right that all states must allow.

    Most telling were the comments by Justice Keegan asking if the attorneys were suggesting that gay marriage should be allowed in all states. Even though the attorney answered that he was not suggesting that in the case, Keegan followed through with the comment that California and perhaps the other states who have passed gay marriage and other laws protecting gay relationships would gain through a positive ruling in the Prop 8 case as well as the DOMA case, while gay persons in all other states who have no such rights would be completely left out.

    Then, the questioning turned to what would happen if a couple were married in a state that allowed gay marriage and then moved to a state that did not recognize their marital status. The attorney’s answer was that the couple’s marriage recognition and protections would be subject to the new state in which they resided.

    Keegan’s basic premise during that part of the hearing was that it is unfair to recognize the right for gays to marry in progressive states, while not addressing the other states where gays have not seen the advances in legislation. (i.e. Bible belt. Repressive states)

    Most commentators seemed to overlook those comments as well as those concurring by another Justice.

    For me, these were the most revealing comments and suggest that SCOTUS WILL ISSUE A BROAD DECISION on the constitutional right of gay people to marry and for states to recognize gay marriages performed in other states.

    That’s my take on the issue and the reasons SCOTUS will state in it’s majority opinion for issuing a broad ruling.

    I must admit that I am surprised that no one else seemed to pay great attention to those particular comments in the hearing or why they were otherwise ignored in reaching a conclusing that the court would issue a limited ruling.

  8. says

    @ Dave :

    I agree with your summary…….and you could expand it to a situation where a valid foreign marriage is recognized in some US states and not in others…..that is just a nonsensical situation.
    I hope you are right about a broad ruling….but I do have a sinking feeling…..just nervousness perhaps.

  9. will says

    I’m comfortable with the states deciding the gay marriage issue state by state. Democracy works best when the people themselves choose what is just — when government is by the people and a rule of the majority (and, yes, this includes gay marriage and women getting the vote). SCOTUS not deciding Prop 8 on technical grounds is not the worst thing that can happen to us. It took until 1920 — after at the very least 40+ years of women like Susan B. Anthony and Elizabeth Stanton campaigning — before a majority of senators supported a constitutional amendment to give women the vote (82% of republicans and 54% of democrats supporting). Then it went to the states.

    We’ll get there. I have faith in the majority.

  10. macmantoo says

    Actually I’m not one comfortable with the states making the decision. If we let the states make the decisions on civil rights of gays then we would be in the same situation as the slaves were in the 1800’s. Civil rights of anyone is best to be solved at the Federal level.

  11. says

    I’m not comfortable with that @will and no one who thinks they deserve first-class citizenship should be. The whims of the majority shouldn’t override the Constitution. The public will continue to move to our side, but certainly not everywhere in the U.S., and I don’t have faith in the majority in states like Alabama.

    The state-by-state approach, especially if Section 3 of DOMA falls, creates an absurd patchwork of marriage laws for gay couples across the country. I’m doubtful that there will be a broad Prop 8 ruling but a situation that has couples in my state fully married and couples in Kansas with nothing is neither sustainable nor acceptable. It will be back in the courts since there is no feasible legislative solution at the state level. (The backwards states are going to remain backwards well into the future.) I’m hoping that whatever the decisions are it creates a tipping point so that we’re not still fighting this 10 years from now.

  12. Jim says

    Every legislator in the country is secretly praying that SCOTUS declares gay marriage constitutional and puts to rest the practical political problem of dealing with a contentious issue that won’t go away. If the court settles the issue for the country, then legislators get a juicy target to take potshots at and they never have to bear responsibility for difficult politics–a win-win for any hack politician. Save the careers of America’s legislators, SCOTUS, and rule gay marriage constitutional. They’ll hate you in public and love you in private.

  13. Merv says

    @Dave – Kagan may want a sweeping ruling, but she’s just one vote. The majority is just not there. As for states not recognizing marriages from other states, that’s already established law under the public policy exception in regards to polygamous marriages, underage marriages, incestuous marriages, etc. It wouldn’t be hard for them to add one more exception.

  14. JONES says

    Not recognizing LGBT marriage from other states is exactly what is being written into restrictive language in those states where it’s not yet legal.

    That’s one of the reasons why this is a Federal civil rights issue that SCOTUS will eventually have to address.

    SCOTUS can see this as the federal civil right issue it is now or hide from responsibility and pass it off to another court or another time.
    This is their profile in courage moment.

  15. Kevin says

    THey are going to kick the can down the road IMO.
    As for leaving it up to the states,nice thought but our rights shouldn’t be up for a vote in the states we could put it on ballots for and the other states,any branch of government where a Republican is in control menas gay marriage won’t happen and even in states like RI and IL,there are many Democrats who don’t believe in Gay marriage either and have no qualms about delaying it as long as possible.

  16. says

    @ JIM :
    How could you possibly be comfortable with the States deciding on the recognition of a same sex marriage issue ?

    Are you comfortable with , say Utah, not recognizing a valid marriage between a US citizen and a Dutch guy ? ….especially where Holland would recognize their marriage if they married in Mass, ?

    You know, sooner or later the USA is going to have to wake up to giving respect to “foreigners”……and that includes the equality and respect which is given to US citizens in Europe.

  17. JONES says

    The very simple clarity here is that while the terms of marriage is a states rights issue marriage itself is a constitutionally guaranteed federal right and the state must be in adherence to the federal constitution. This is not news to SCOTUS. They’ve had 14 prior cases on marriage and it’s finely established law that marriage is a basic human right and is guaranteed by our constitution.
    States can regulate ages, degrees of separation, divorce, property rights in conjunction with marriage, and all the rest of the nuanced issues but they can not restrict marriage to a subject class of citizens regardless of the opinions pro or con of the rest of it’s citizens.

  18. says

    @Merv the examples you give for states not recognizing the marriages of other states are not apt, except in the eyes of homophobes, whose power is fading even if their irrationality is not. The apt comparison would be interracial marriages, with the obvious parallels between Loving v. Virginia and the marriages of gay couples today. That is where we’re headed, the only question is how many court decisions it will take to get there.

  19. Merv says

    @Jones @Ernie – I agree that they *should* treat it as a civil rights issue, I just think they will punt by giving us minimally favorable rulings on Prop8 and DOMA, but leave it to the states pending a more sweeping ruling a decade or so in the future.

  20. Rob says

    Saying that legislators should decide on rights for a minority is TOTALLY RIDICULOUS! It is up to the COURTS to protect minorities- PERIOD. They have to JUDGE what is FAIR. That is why the people in those robes are called that. “Judge.” (Or in this case Justice.) Most people aren’t Jews. Should a majority of christian legislators be allowed to legislate what Jews can and can’t do? Hello? Anyone have a history book? We’ve been through this.

    That is not to say that courts have a great record on it- they tend to be quite far behind the times because Judges and Justices tend to be so damn old. (God bless Justice Ginsberg, a former ACLU attorney, who is in her eighties and is a notable exception. Her opinions will stand the test of time.)

    I agree with Dave, we are getting the whole banana, as it were. Not because of Kagan’s comments, but because the court looks at its legacy. The courts that have been behind the times, esp in Loving v. Virginia, are used as examples of human buffoonery in every law school lecture. This court sees the train coming and I know they are going to jump on it. Moreover, they are going to release it right before Pride celebrations in NYC and Chicago.

    I wonder if Jimmy the Greek is taking bets on this, because I’d love to put some money on it. I can feel it in my bones and the champagne is chilling now. Lots of it. (We live on the parade route in Chicago and allow me to invite all Towleroad readers to the corner of Roscoe and Broadway for a giant glass of bubbly.)

  21. littlewoot says

    I think the wording of the DOMA ruling could be very important in the scenario of striking down DOMA while making a very narrow ruling on Prop 8.

    A concern for me is if you strike down DOMA with the argument that marriage should be left to the states and then wind up in that patchwork legal quandary for gay marriage and you’re left with thousands of folks facing bizarre inconsistent treatment (moving for work, live half the year in one state vs another, etc.), will there be an avenue to remedy wholesale down the road or does the arguments in striking down DOMA wind up hurting the efforts to get marriage equality in all 50 states.

    That is, will the DOMA ruling come back to haunt marriage equality when it comes time to address the inconsistencies and work to have uniformity across all 50 states have we trapped ourselves in a corner in the arguments made to find DOMA unconstitutional. I think the wording here will be interesting to see if we’re left with an opening to remedy in the future, and whether the Justices are contemplating how to address the future legal headaches that arise out of how well they coordinate these two rulings.

    I found the Kagan points certainly interesting, but the court seems to have the tendency to try to rule as narrowly as possible so I’m skeptical they’re likely to rule sweepingly/broadly if the have other avenues that allow them the ability to rule more narrowly. That being said, if they foresee the above logistical nightmares coming, maybe there is hope that they’ll address it in a broader context to stave off some of the future headaches.

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