Supreme Court Gay Marriage Rulings Will Come Tomorrow

Discussion in 'Too Hot for Swamp Gas' started by GatorBen, Jun 25, 2013.

  1. GatorBen
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    GatorBen Well-Known Member

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    Supreme Court Strikes Down DOMA, Punts on Prop. 8

    Tommorrow is the last opinion day of this Supreme Court term, and we will get opinions in the three remaining cases. Obviously Perry (Prop. 8 challenge) and Windsor (DOMA challenge) are the two big ones and will dominate the news coverage.

    Any guesses as to the outcome in those cases?

    I'll start by saying I think it is pretty likely that DOMA will be struck down, likely in a Kennedy opinion. Grounds for doing so could be either federalism (that the federal government did not have the substantive power to enact DOMA because regulation of family law is a matter of state law) or the equal protection access to benefits argument. Federalism is the narrower of the two grounds for doing so and EP the broader, so it depends largely on how sweeping of an opinion could garner a majority probably.

    Prop. 8 is a lot less clear. I don't think many people foresee the Court being able to get a majority to uphold it, but it has alternate bases for avoiding the question. The one being predicted a lot right now is that perhaps it will be disposed of on standing grounds (that the supporters of Prop. 8 did not have standing to appeal the district court decision once the California state government abandoned the case after the trial). If that's the result, the Chief Justice is probably writing the opinion. It also raises the interesting question of what happens to Judge Walker's injunction in the District Court. It would pretty clearly mean that the actual plaintiffs in the case could get married, but because it wasn't a class action Judge Walker arguably exceeded his powers by issuing a state-wide injunction (if his injunction is construed that way, which both parties seemed to assume). So the Court could narrow his injunction, but there is also the argument that the Prop. 8 supporters lacked standing to appeal the overbroad injunction as well and since the officials it was directed at did not appeal it should stand. That will be interesting.

    The other possibility in Perry would be an EP clause ruling. There are lots of possibilities within EP clause treatment, but the Court heightening scruitny based on sexual orientation seems like one of the less likely ones. Either finding no rational basis (as the Ninth Circuit did) or calling it gender discrimination to get to intermediate scrutiny would both be more likely. That would probably be a Kennedy opinion as well if it went the EP route.
  2. ThePlayer
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    ThePlayer VIP Member

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  3. MichiGator2002
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    I kind of hate that standing reasoning, though, because it tacitly states that state governments can nullify properly enacted referenda by laying down for any subsequent legal challenge. It is like all roads lead back to liberal manifest destiny, no political or legal remedy would be available to anyone standing on the tracks.

    Walker applied a higher scrutiny and just called it rational basis, IMO. We might get a fractured court and be counting judges as people grab on to whichever sham argument let's then sleep at night (the gender discrimination one is my personal favorite intellectual fraud).
  4. mocgator
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    mocgator Well-Known Member

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    This thread is gay...

    No-homo...
  5. orangeblueorangeblue
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    orangeblueorangeblue Well-Known Member

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  6. Lawdog88
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    Must be something about those heterosexual vows:

  7. GatorBen
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    GatorBen Well-Known Member

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    Agreed that Walker's opinion wasn't necessarily classical rational basis, but it was the so called "rational basis plus" that got used in Lawrence and Romer and was probably binding on him as the proper test if you want to recognize it as a separate test. I tend to think that the correct answer is probably that it is and the Court has just muddied the waters by not saying so. I would actually be a little surprised (pleasantly so, but surprised nonetheless) by an EP ruling in Perry.

    Standing is my best guess I think, even though I share your concerns about what that would mean. If it is the basis, hopefully the Court at least lays out some guidelines as to how the state can permissibly confer standing on someone to defend a state initiative when the state won't and just concludes that what California has doesn't get there. I guess other possibilities would be a vacate and remand for reconsideration in light of a potential EP decision in Windsor or a dismiss as improvidently granted, but neither strikes me as terribly likely. It will probably be either standing or struck down on EP grounds in my opinion, with standing being the result that I view as more likely.
  8. Spurffelbow833
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    Spurffelbow833 Premium Member

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    They'll learn.
  9. MichiGator2002
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    Walker's opinion and "Romer" were both "we know we don't have a leg to stand on to suddenly attribute a higher scrutiny to homosexuality but dadgummit we want the result so we are going to asspull something" analysis.

    I would accept the standing ruling if they do what you suggest, some dicta at least indicating that there must be some means by which standing can be conferred to defend state laws and constitutions that the state can't be arsed to defend, but that maybe it just has to be done at the trial level or through the political process, they can't have a circuit court just do it on the fly.
  10. GatorBen
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    GatorBen Well-Known Member

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    Let's not kid ourselves, much of the Equal Protection analysis is results driven, not just the stuff that either of us happens to disagree with. But I think there's actually a pretty good argument that the conditions probably existed at the time of both Romer and Lawrence to apply strict scrutiny had they wanted to (a discrete and insular minority lacking the political power to protect its rights through the ordinary democratic processes which has historically been discriminated against, or subject to prejudice, hostility and stigma; would you really argue that that didn't describe the gay community pretty well at least until fairly recently?). Interestingly I'm not sure that those conditions exist anymore now, but the reason we got "rational basis plus" rather than strict scrutiny were largely political rather than legal in my opinion.

    The one problem with that standing argument though, is that it's tough to carve out why standing doesn't exist in this case. California Supreme Court ruling that the proponents could defend the law under California's legal system was largely what persuaded the lower courts, but that means to get rid of it on standing you have to say that what California viewed as sufficient doesn't satisfy Article III, and that makes it a little tougher to come up with what a state could do that would.
  11. Gatorrick22
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    Gatorrick22 Well-Known Member

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    :laugh:
  12. GatorBen
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    GatorBen Well-Known Member

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    About 10 minutes until opinions start. Any last minute guesses?
  13. MichiGator2002
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    Well, I know there has been talk about a 10th amendment argument in Windsor, but it seems silly, the 10th wouldn't preclude the federal government defining marriage solidly in federal contexts, but it will probably be a bootstrap to overturn DOMA. But as long as the FFC is untouched, that isn't too awful. Hopefully they just realize "rational basis plus" has pushed too far and reverse the 9th and Walker, but failing that, I think they are going to confine the results to the 9th Circus. A sweeping 14th Amendment constitutionalization of gay marriage would be a jurisprudential travesty.
  14. g8rjd
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  15. GatorBen
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    Sounds like a new legal standard perhaps: "In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles."
  16. GatorBen
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    GatorBen Well-Known Member

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    Kennedy's summary.
  17. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    Early impressions seem to indicate a broad ruling.
  18. BobK89
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    BobK89 Well-Known Member

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    Any word on the Cal prop 8 case?

    Sent from my iPhone using GatorCountry
  19. oragator1
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    This sounds like it will mean they will punt the other one back to CA but we will see.
  20. GatorBen
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    Roberts' dissent in DOMA says that today the Court held that it lacked jurisdiction to consider the California challenge, so seems to be going to get kicked on lack of standing.

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