How will the Supreme Court vote on same-sex marriage?

[cecilfirefox]

Now, this is a loaded question- were asking for predictions for a case that hasn't been heard yet. Let me say ahead of time to that once the case is heard and the oral arguments are made available I think we can probably listen to those and queue in on who is with us and who is not.

My personal prediction is that all the conservatives will be lockstep against it, but that Kennedy will unite with all three of the liberals on the court- leaving Sotomayor as the kind of swing vote. Kennedy is fairly conservative on everything other than social issues. This is the man who penned the majority opinion for Lawrence vs. Texas, and who even said(And I believe this a direct quote) " Bowers was wrong then and it is wrong now, ". I would be fairly shocked if he voted against it. Sonia Sotomayor is, in my mind, the unknown here. We've never really seen her on social issues- in part because of her time on the bench as a criminal judge.

I think a 5-4 ruling in our favor is very possible. Also, we must keep in mind that this issue is at least 3 years from the court and may well be heard before the Presidents first term ends. It's also possible other justices may retire by then, and Gods willing if their conservatives are chances are increased. Let me also mention though that its possible this case may be decided after the Presidents first term, which is why you want that President to still be Barack Obama. Especially if justices retire right before it is heard. If we have President Obama for 12 years he'll probably reshape the court.

Now, let's hope for the best. And give me your predictions, but please elaborate. Tell me why you believe what to be what.

[bluestateguy]

1. I think Stevens will hang it up this year

meaning we could be in the midst of a Supreme Court nomination kerfuffle in the middle of campaign season.

[cecilfirefox]

2. Oh, its all just to frightening I tell you. nt

[secondwind]

16. I hope Stephens hangs it up this year, and Ruth Ginbsberg next year, giving

Obama two more Supremes to nominate!

[laconicsax]

3. I think it would have a bit to do with the nature of the case.

I recall a challenge of a same-sex marriage ban that failed partly due to the inept nature of the challenge. The decision even noted that the challenge wasn't made on undeniably stronger grounds. I don't remember the specifics, but the grounds on which the challenge is made will make a difference.

[t0dd]

4. I agree 5-4 in our favor.

Kennedy also penned the majority opinion for Bowers. I can't see him siding against us.

And I also agree Sotomayor is the unknown here, but I can't see her casting the deciding vote that sets back gay rights for a generation. I don't know her judicial history, but, personally, she seems like an empathetic woman.

But the question remains: how far will they go in the ruling? Will they just decide Prop 8 is unconstitutional, restoring same-sex marriage in California, or will they strike down all same-sex marriage bans in all other states?

I believe Olsen and Boies know what they are doing. And I believe this is how we win same-sex marriage nationally and end the question once and for all. Enough state-by-state "victories" and baby steps (that HRC advocates); they are hallow if not all glbt citizens in this country can't enjoy the right to marry.

[Unvanguard]

5. I'd reverse that. Sotomayor is a good bet for our side, Kennedy is not.

Lawrence v. Texas overturned sodomy laws in the handful of states that still had them--obsolete laws, long-repealed in most states, that weren't even enforced in the states that had them. It was the enforcement of a solid public consensus upon a few holdouts, an affirmation of our side's victory in a battle we had basically already won. And it operated in territory that the Court had already dealt with extensively: it stemmed from long-established privacy doctrine, overturned what had been even in 1986 a 5-4 decision, and was pretty clearly inevitable after the 1996 Romer v. Evans decision.

Perry v. Schwartzenegger is different in all of these respects. It deals with a controversy that is very much live, and one where at the moment our side is decidedly in the minority: in 2003 something like three states still had sodomy laws, but 45 states don't allow same-sex marriage, and they are more attached to those bans than anyone was in 2003 to sodomy bans. The idea that a person of fundamentally conservative judicial instincts like Kennedy (both in ideology and in the sense of judicial restraint) would side with a challenge to the constitutionality of all those marriage laws in name of equal protection and due process rights, traditionally championed most strongly by liberals, strikes me as, while not quite implausible, nonetheless unlikely.

As far as Sotomayor goes, however, she's probably what we would expect a Democratic president with a Senate supermajority to appoint: that is, a judicial liberal who will side with us when it counts. That's hardly definitive, you're right that we just don't have enough of a record to judge definitively, but unless she starts showing a conservative streak in her decisions as justice, I'm inclined to go with it in the absence of anything else. It's worth adding, though, that none of the Court liberals are definitively votes for our side--Ginsburg perhaps excepted. They don't have any record on this particular LGBT rights issue either.

Edit: To answer your question clearly, I think we're going to lose 5-4 or perhaps 6-3, but could envision a 5-4 ruling for us if Kennedy stays solid. On the furthest reaches of plausibility, we might get 6-3 for us with Roberts; apparently he aided our side in Romer v. Evans.

[t0dd]

6. Kennedy also wrote the majority opinion for Romer v. Evans

Look at this quote:

When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

...

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

His strong language in the Lawrence v. Texas majority opinion, and in Romer v. Evans, suggests to me that this is something he feels deeply about: that all citizens, regardless of sexual orientation, deserve every fundamental right under the law. I think that is important to consider when predicting how he would vote.

[Unvanguard]

7. He did, I know.

And he certainly seems to lack the kind of homophobic antipathy that comes across in reading the opinions of, say, Scalia. But I don't think Romer v. Evans is comparable either.

First, its scope was far narrower: one state, one amendment. It's hard to see how the Supreme Court could rule so narrowly as to only invalidate Prop. 8, though; at the least, it would have to invalidate other constitutional amendments that prohibit only the designation of "marriage."

Second, Kennedy puts a lot of emphasis in his opinion on how the amendment is unique and extreme, that it explicitly singles out a certain group and explicitly excludes them from a broad range of protections open to other groups. While obviously same-sex marriage bans are ultimately just as discriminatory, they are not so in as obvious a way as Colorado's Amendment 2 was: for one, they are far less broad, and for another, they apply to everyone at least in the formal sense (gay men can marry women, straight women can't marry each other.)

Third, tying in with the second point, Romer v. Evans is written, probably deliberately, in a way that makes it difficult to draw any broad theoretical implications for equal protection cases dealing with sexual orientation. It doesn't grant sexual orientation any level of heightened scrutiny (which would be very helpful for a challenge to Prop. 8), and it doesn't deal with the justifications that will inevitably be given for marriage discrimination.

Kennedy breaking with the conservative bloc, together with the other moderate conservative justice (O'Connor voted with the majority in Romer too), to invalidate an amendment as extreme and as unique as Colorado's Amendment 2 is simply not a great indication of how he will respond to a case as legally and politically different as Perry v. Schwarzenegger. It's a positive sign, without a doubt, but not a definitive one, and not one that, at least for me, outweighs the factor of his general ideology and judicial temperament.

[dsc]

8. It was 14 states including MA of all places

[Unvanguard]

10. I just checked, and you're right.

I think I may have been thinking of the states that criminalized same-sex sodomy in particular, but your number better reflects the scope of the decision. Fourteen, though, is still not forty-five, and it was emphasized both by the dissenters in Bowers and the majority in Lawrence that the laws that remained were both on the way out and mostly went unenforced. The same cannot be said for same-sex marriage bans at this point.

[ruggerson]

11. When Loving V Virginia was decided, 75% of the country disapproved of interracial marriages

It wasn't until the 1990's, believe it or not, that the pendulum of public opinion decisively swung in favor of interracial unions.

And yes I know the Warren Court was very different, but we only need 5 votes.

[Unvanguard]

12. The Warren Court was much more willing to court that kind of controversy.

And it had already made a strong public commitment to making the Equal Protection Clause meaningful in the African-American civil rights context. Also, I'm not sure if the moral disapproval you cite necessarily implied a commitment to supporting anti-miscegenation statutes: they were never universal nationwide, and by 1967 basically only existed in the South. The most successful civil rights initiatives, both judicial and legislative, always had the character of imposing national norms (in this case, the absence of anti-miscegenation statutes) on the regional holdout that was the South, not altering norms nationwide as success in Perry v. Schwarzenegger would--and even that took almost a century after the enactment of an Equal Protection Clause plainly intended to do what the Warren Court finally did.

Furthermore, it's hard to overestimate just how different the composition of this court is from the Supreme Court of the Great Society: the Warren Court's boldness brought about a long, multi-decade backlash, such that justices who for the 1960s and 1970s were moderate conservatives (e.g. John Paul Stevens) now lead the liberal bloc. The idea of using constitutional provisions to bring about social justice just does not carry the kind of currency it once did.

Edit: I'm not saying it's impossible (Kennedy or even Roberts could come through) and I'm certainly not saying it's never going to happen; my best guess is a close loss for us, followed by a clean-up success sometime later after same-sex marriage takes stronger root nationwide. But I'm not getting my hopes up. We need to think seriously about what we are going to do if Perry v. Schwarzenegger fails, if this solution to the problems of state-by-state efforts ends up not bearing fruit.

[ruggerson]

9. I completely agree with you

n/t

[TexasObserver]

13. 5-4, but it could go either way with the current court.

However, I believe Kennedy will come through.

I cannot imagine Sotomayor voting wrong on this.

[tekisui]

19. Kennedy was the 5th on Romer v. Evans.

That gives me some comfort.

[Libertas1776]

14. I doubt this current court

will do shit for us. They'll consider multinational, multibillion dollar corporations "people" long before they afford us our civil rights.

[allanrbrts]

15. 5-4 Against Marriage Equality

As the Court currently stands I believe they'll vote against marriage equality.

I think we should have continued at the state level for a while.

Should the Court decide against us, all of the state level progress will be lost.

[cecilfirefox]

17. Actually, not true(Regarding state progess being lost),

I just wanted to pop in and chime something real fast! If the Supreme Court rules against marriage equality that ruling will not knock down the state supreme court ruling's, it just says federally there is no right(Which is a lie). Iowa, MA, CT, Vermont, New Hampshire, DC, and all the marriages still legal from California will be safe.

[sui generis]

18. considering that Kennedy also voted to disallow defendent

right to call an expert witness for cross examination? Because it's too expensive? WTF? So hearsay and manufactured evidence to support a prosecutor's wild ass (and we know they LOVE absurdity) assertions should not be questioned?

And now he's requesting the decision be overturned in favor of saving money. He is absolutely chaotic and an unknown. He's supposed to be addressing constitutionality, not nickel and diming the cost of a fair trial.