What Will SCOTUS Do?

[DonViejo]

JOSH MARSHALL – MAY 20, 2014, 4:20 PM EDT

As you can see, today we have not only another state gay marriage ban struck down by a federal judge. We have another struck down by a Bush appointee. Indeed, one endorsed by then-Senator Rick Santorum. I'd like to hear from lawyers and SCOTUS watchers but I'm straining to think of any analogue in recent history where you have an issue of great national import, SCOTUS makes an ambiguous but suggestive ruling and basically all the lower courts in rapid succession say, "SCOTUS folks, you meant this." In this case, your ruling means that state bans on same sex marriages are unconstitutional.

I wrote late last year that I expected that same sex marriage would be the law of the land (by judicial fiat) by the end of President Obama's term in office, perhaps well before that. So I have some interest in having that long shot prediction proven right.

But the question presents itself: how long does the Court let this play out? The conventional answer is maybe for quite a while. After all, the Court usually feels compelled to act precisely when there is disagreement on a matter of great national or jurisprudential import. But here that's totally lacking. There's no disagreement at all.

To the best of my knowledge, every judge who has had a bite at this apple has ruled that the Windsor decision means that same sex marriage bans violate the federal constitution. Not just Obama and Clinton appointees but Bush and Reagan appointees too.

more
http://talkingpointsmemo.com/edblog/what-will-scotus-do

[customerserviceguy]

1. It sounds a bit to me

like the Republicons, even the fundie-supported ones, are looking for a way to back away from this issue. They know that their bullshit "sanctity of marriage" argument is a non-starter with younger people, even those from conservative backgrounds.

[morningfog]

2. The Supreme Court will affirm one (or some or all) of the lower courts rulings.

There is not a single court that has gone the other way. The only questions are what level of scrutiny they give and whether they find marriage a fundamental right.

This is no longer an "open" question. It is one the SCOTUS has simply not yet answered. They will soon and it will be to affirm that same-sex marriage bans are unconstitutional.

[Swede Atlanta]

3. I believe the SCOTUS is going to have little choice.....

The issues around same-gender marriage are complex.

1. We have a number of states with constitutional amendments or statutes prohibiting same-gender marriage
2. We have states with a hodgepodge of laws governing adoption by same-sex couples and what that means, e.g. will both fathers or mothers be shown on the birth certificate
3. We have states such as Georgia that not only prohibit marriage but also any availability to the state courts for divorce whereas Wyoming will not marry you but will divorce you
4. Issues of visitation, etc. around same-gender couples
5. Tax issues where for federal purposes they are married filing jointly and for state they must be single

This situation is going to have to be resolved. I really don't see the SCOTUS trying to undo a decade or more of change in favor of ruling against marriage equality.

I think they will have to, even reluctantly, rule prohibitions on same-gender marriage unconstitutional. I'm sure Thomas and Scalia will be in scathing dissent but I don't care.

[msanthrope]

4. SCOTUS doesn't want to touch this with a 10 foot pole. Roberts doesn't want a Taney legacy. nt

[AlinPA]

5. The right wing SC judges will re-instate the bans. 5-4. They are republicans, remember?