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Supporters of California’s “Proposition 8,” a ballot measure adopted by voters four years ago to ban same-sex marriage in the state, urged the Supreme Court on Tuesday to uphold the ban and thus put it back into full effect. The petition and appendix (a file of nearly 500 pages) are here.
The United States Supreme Court will decide when it convenes this autumn whether or not to hear the case. My take on the possible outcomes of this and the likelihood of each:
THE SUPREME COURT DECLINES TO HEAR THE CASE
It takes four Justices to grant cert, so it certainly could happen. But in this instance, allowing the Ninth Circuit's decision to stand would change little outside of California. The Ninth Circuit's ruling held that once the fundamental right of marriage was granted to a class, it could not be taken away. If the USSC declines to hear this case, same-sex marriage would simply once again become permitted in California, and it would become binding precedent in all states of the Ninth Circuit that once marriage rights are granted they may not be revoked. At present, no other states in the Ninth Circuit allow same-sex marriage (though in Washington the same-sex marriage bill passed and signed earlier this year is likely to take effect after the November elections), so nothing would change unless another Ninth Circuit state allowed same-sex. That right then could not be taken away.
ODDS: 50%
THE SUPREME COURT ACCEPTS THE CASE, UPHOLDS THE NINTH CIRCUIT'S DECISION
This outcome would be similar to the outcome above, except that the principle that granted marriage rights may not be withdrawn would be binding law in all of the country, meaning same-sex marriage could not be revoked in Washington, DC, or in any of the six states that currently allow same-sex marriages. This would change little, as the only one of those jurisdictions with any chance of revoking their same-sex marriage law is Iowa, and even there it is unlikely due to that state's high bar for amending the state constitution.
ODDS: 30%
THE SUPREME COURT ACCEPTS THE CASE, DETERMINES THAT SAME-SEX MARRIAGE IS A FUNDAMENTAL RIGHT
The high court is not bound to decide only the questions it is asked. Conceivably, it could simply re-instate the ruling of the District Court that barring same-sex marriage is a violation of the Equal Protection Clause of Amendment XIV. More likely than not, however, the USSC would limit itself to addressing the specific questions at hand.
ODDS: 15%
THE SUPREME COURT ACCEPTS THE CASE, STRIKES DOWN THE NINTH'S RULING ENTIRELY
This is most unlikely to happen. There is no reason to think that any of Justices Breyer, Ginsburg, Sotomayor or Kagan would support such an approach. And given that both the District and Circuit court cases were built around the precedents in Romer v. Evans (1996) and Lawrence v. Texas (2003) - cases in which the majority opinions were authored by Justice Kennedy - it is difficult to imagine how five votes to overturn could be found on the high court.
ODDS: 5%
The United States Supreme Court will decide when it convenes this autumn whether or not to hear the case. My take on the possible outcomes of this and the likelihood of each:
THE SUPREME COURT DECLINES TO HEAR THE CASE
It takes four Justices to grant cert, so it certainly could happen. But in this instance, allowing the Ninth Circuit's decision to stand would change little outside of California. The Ninth Circuit's ruling held that once the fundamental right of marriage was granted to a class, it could not be taken away. If the USSC declines to hear this case, same-sex marriage would simply once again become permitted in California, and it would become binding precedent in all states of the Ninth Circuit that once marriage rights are granted they may not be revoked. At present, no other states in the Ninth Circuit allow same-sex marriage (though in Washington the same-sex marriage bill passed and signed earlier this year is likely to take effect after the November elections), so nothing would change unless another Ninth Circuit state allowed same-sex. That right then could not be taken away.
ODDS: 50%
THE SUPREME COURT ACCEPTS THE CASE, UPHOLDS THE NINTH CIRCUIT'S DECISION
This outcome would be similar to the outcome above, except that the principle that granted marriage rights may not be withdrawn would be binding law in all of the country, meaning same-sex marriage could not be revoked in Washington, DC, or in any of the six states that currently allow same-sex marriages. This would change little, as the only one of those jurisdictions with any chance of revoking their same-sex marriage law is Iowa, and even there it is unlikely due to that state's high bar for amending the state constitution.
ODDS: 30%
THE SUPREME COURT ACCEPTS THE CASE, DETERMINES THAT SAME-SEX MARRIAGE IS A FUNDAMENTAL RIGHT
The high court is not bound to decide only the questions it is asked. Conceivably, it could simply re-instate the ruling of the District Court that barring same-sex marriage is a violation of the Equal Protection Clause of Amendment XIV. More likely than not, however, the USSC would limit itself to addressing the specific questions at hand.
ODDS: 15%
THE SUPREME COURT ACCEPTS THE CASE, STRIKES DOWN THE NINTH'S RULING ENTIRELY
This is most unlikely to happen. There is no reason to think that any of Justices Breyer, Ginsburg, Sotomayor or Kagan would support such an approach. And given that both the District and Circuit court cases were built around the precedents in Romer v. Evans (1996) and Lawrence v. Texas (2003) - cases in which the majority opinions were authored by Justice Kennedy - it is difficult to imagine how five votes to overturn could be found on the high court.
ODDS: 5%
This is an interesting analysis. Do you think that the Court would rather take one of the DOMA cases making the rounds or the Prop 8 case?
The SCOTUS has rejected a right to homosexual marriage in the past, which will be used as precedent. I suspect that if they take the case, they will uphold the ban, but they might allow those married before the ban to stay married. The 4 liberal justices can uphold homosexual marriage and the other 5 say otherwise. Kennedy the swing vote may decide it.
The SCOTUS has rejected a right to homosexual marriage in the past, which will be used as precedent. I suspect that if they take the case, they will uphold the ban, but they might allow those married before the ban to stay married. The 4 liberal justices can uphold homosexual marriage and the other 5 say otherwise. Kennedy the swing vote may decide it.
Precedent didn't stop SCOTUS in Citizens United. Besides the precedent in Baker ( I assume that is the case you are referring to) was one sentence saying that there was not a federal question.
Precedent didn't stop SCOTUS in Citizens United. Besides the precedent in Baker ( I assume that is the case you are referring to) was one sentence saying that there was not a federal question.
Citizens United had precedent going back to the early 19th century. The Constitution should have been amended a long time ago to reverse those decisions.
Since it's not a federal issue, and no federally protected rights are involved, I don't see them saying there's any right to homosexual marriage. I think the only iffy part is where privileges were granted and then revoked later by the state. They might find problems with that but not the ban as a whole.
Citizens United had precedent going back to the early 19th century. The Constitution should have been amended a long time ago to reverse those decisions.
Since it's not a federal issue, and no federally protected rights are involved, I don't see them saying there's any right to homosexual marriage. I think the only iffy part is where privileges were granted and then revoked later by the state. They might find problems with that but not the ban as a whole.
The precedent overturned in Citizens United was of a pretty recent vintage namely their decision in 2003.
It is a matter of definition. There is a federal question if you see the issue as pertaining to the right of marriage, which if a federal right. If it is defined only as a right to homosexual marriage than you are correct.
This is an interesting analysis. Do you think that the Court would rather take one of the DOMA cases making the rounds or the Prop 8 case?
It really isn't an either/or. Perry hinges on the Equal Protection Clause, whereas the DOMA cases hinge on whether or not the federal government can refuse to recognize certain types of marriages. The USSC almost has to take one or more (ie, consolidated) DOMA cases, because the circuit split where the federal government is required by some Circuit Courts of Appeals to recognize same-sex marriages within their jurisdiction, but not in other Circuits (which is what would happen if the high court declined to hear appeals of such decisions) would be unworkable. The Supreme Court generally doesn't like circuit splits, and this is just the sort of one they won't let stand.
The SCOTUS has rejected a right to homosexual marriage in the past, which will be used as precedent.
Really? Interesting. Suppose you cite the case(s) where the USSC has done so?
. . . . . . . .
Don't bother looking -- the USSC, contrary to your claim, has never done any such thing. The high court has never issued a decision on same-sex marriage. Why you think it has is beyond me.
Quote:
I suspect that if they take the case, they will uphold the ban, but they might allow those married before the ban to stay married. The 4 liberal justices can uphold homosexual marriage and the other 5 say otherwise. Kennedy the swing vote may decide it.
You are very confused. Those same-sex couples married in California in 2008 remain married to this day. The United States Supreme Court has no say in that -- it is purely a question of California state law, as that ruling was based on the California state constitution.
As for Justice Kennedy, you're free to think that he is going to do a 180-degree flip on the precedents he himself crafted in Romer and Lawrence. But wishful thinking won't get you very far!
THE SUPREME COURT ACCEPTS THE CASE, STRIKES DOWN THE NINTH'S RULING ENTIRELY
That would be a happy day indeed - if the Supreme Court upholds the will of the people of California and affirms their clear, moral, decision to defend marriage.
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