General Question

burntbonez's avatar

How will the Supreme Court decide on gay marriage?

Asked by burntbonez (5197points) December 7th, 2012

The will be hearing a couple of cases. What’s your prediction on how they will decide. Why do you believe that?

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22 Answers

JLeslie's avatar

I am not very well versed on legal matters, but my guess is California will be able to go forward with gay marriages and federal benefits will be available to any married couples including gay couples. What I am not sure about is if this will mean gay marriage will be in every state? I don’t think so. I think it will still be left to each state to make it legal in their state.

susanc's avatar

The Roberts Court will not legalize gay marriage. We’ll have to wait till Obama gets to appoint some new justices. Then it’ll get raised again and pass. I’ll lay you ten to one.

susanc's avatar

Gay marriage just became legal in Washington. That doesn’t affect IRS status, etc. However, we’re very happy about it.

marinelife's avatar

I think that it will be left to the states.

Unbroken's avatar

If they don’t pass it I would be interested in reading the arguments for such a position.
I usually am for state power. But this is a human rights issue.

Brian1946's avatar

Without studying a majority of the relevant cases decided by the individual justices, it’s hard for me to say.

There’s a happenstance possibility that they would overturn Prop 8 and DOMA, because even though the SC is 5/9 conservative, they did rule in favor of Obamacare.

However, they did rule in favor of Citizens United, but that also has very little in common with the gay rights issues before them now.

If they rule based on states’ rights and defer to the passage of Prop 8, then they might let that stand but overturn DOMA.

Here’s a quote of the email that I got from the ACLU today:

The Court announced today that it has granted review of the constitutionality of the Defense of Marriage Act in Edie Windsor’s case. The Court also took review of California’s Prop 8, so the full range of marriage issues will now be before the high court. These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.

Here’s why these cases are so important:

Ending explicit federal discrimination. DOMA requires the federal government to discriminate against married same-sex couples by treating them as legal strangers for purposes of all federal statutes and programs. It’s the last explicit federal declaration that gay people are inferior, which is reason enough to get rid of it.
Heightened scrutiny in the balance. The Windsor ruling that the Supreme Court will review included an important new protection — “heightened scrutiny” — by the courts. Under this standard, courts will presume that anti-gay discrimination by the government is unconstitutional and will require the government to have a good explanation for why it needs to discriminate against lesbians and gay men. While DOMA and Prop 8 should fail under any standard, if the Supreme Court adopts the heightened scrutiny standard, it would help eliminate anti-gay discrimination in many different contexts.
Showing the country that discrimination in marriage is wrong. Both Windsor and Perry make profound contributions to the public’s understanding of the freedom to marry. When two people make the commitment that’s at the heart of marriage, it’s profoundly unfair for the government to treat them as though they’re not a family.

The two cases both involve marriage for gay couples, but they actually present quite distinct issues. Edie Windsor is already married — she just wants to stop the federal government from treating her marriage differently from everyone else’s marriages. The plaintiffs in the Prop 8 case, on the other hand, want to get married. The ACLU has filed supportive briefs in Perry all along, and we’ve been working for decades — in courts, in legislatures, in ballot campaigns, and with the public — to help get the country, and the court, ready for this moment.

As the Court moves forward, it is worth retelling Edie’s story.

Edie Windsor and Thea Spyer became a couple in 1965 and had the courage to get engaged in 1967, when marriage for same-sex couples was just a fantasy. In 1977, Thea was diagnosed with progressive multiple sclerosis. Edie and Thea dealt together with the challenges of M.S. for the next 30-plus years.

The couple waited for years to be able to marry, and finally did so in 2007. In 2009, after 44 years together, Thea died.

Naturally Thea left her possessions, including the apartment they had shared for decades, to Edie. But while New York considered Edie and Thea married, DOMA required the federal government to treat them as legal strangers. So Edie was socked with a $363,000 federal estate tax bill that would have been $0 if she had been a straight widow.

If you haven’t seen the video telling Edie’s story, take a look, it’s quite moving.

Heartbroken at the injustice, Edie challenged the constitutionality of DOMA. Two lower federal courts have struck down DOMA in her case, and now the Supreme Court will have the final word.

We couldn’t have gotten here without the courage of Edie Windsor, our wonderful co-counsel in Edie’s case at Paul, Weiss, Rifkind, Wharton & Garrison LLP and the Stanford Law School Supreme Court Litigation Clinic, and the support of advocates and members like you.

James Esseks
Director, ACLU LGBT Project

jerv's avatar

My guess is that they will leave it to the states, as per the Tenth Amendment. There aren’t enough Liberal justices up get full same-sex marriage, but there are enough Constitutionist Conservatives to keep a federal block out of the question.

wundayatta's avatar

I don’t think law and fairness matters to these justices. Only religion and ideology. This court will not find in favor of gay marriage and will do whatever they can to hinder it.

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zenvelo's avatar

In the Prop 8 case, I see they left themselves an out, which is “Does the Court have jurisdiction under Article III?” I can see the current Supremes saying it is not a Federal Jurisdiction because the suit was brought by citizens of a state against its own State.

That would let them let Prop 8 stand but not make a decision.

On DOMA they may say it doesn’t stand as far as one state recognizing due process in another state, but does not meet the standard of discrimination to overthrow the federal restrictions.

I do not trust this Court.

filmfann's avatar

DOMA will be tossed.
California’s Prop 8 will be sent back to the lower court, allowing the writers of the proposition a chance to defend their work, of which they were earlier denied standing.

JLeslie's avatar

I’m confused. Can these cases make it a federal law that gay marriage is legal in all of the US? I don’t the court will do that. Marriage is governed by the states now, I don’t see that changing. Can’t they leave it to the states, but still make a ruling about what a particular state did?

Brian1946's avatar


Whatever decision they make regarding CA Prop 8 will apply only to CA, and no other state.

According to the email I got from ACLU, if DOMA is overturned, it means that federal benefits will be available to all legally married couples, but that will not change the marriage laws of any state. I.e., same sex marriage will still not be recognized in TX, but any SS couple married in a state where it’s legal, will have access to federal benefits and rights:

The couple waited for years to be able to marry, and finally did so in 2007. In 2009, after 44 years together, Thea died.

Naturally Thea left her possessions, including the apartment they had shared for decades, to Edie. But while New York considered Edie and Thea married, DOMA required the federal government to treat them as legal strangers. So Edie was socked with a $363,000 federal estate tax bill that would have been $0 if she had been a straight widow.

JLeslie's avatar

@Brian1946 Thanks. That’s what I thought, which is basically what I said in my first answer. But, then some of the other answers confused me. I thought maybe I had misunderstood.

tinyfaery's avatar

I think @filmfann is right. Prop 8 will be kicked back to the circuit courts who have already ruled prop 8 unconstitutional. DOMA will be ruled unconstitutional, but neither case allows for federal gay marriage.

ETpro's avatar

My guess is that the court decides that the plaintifs in the Prop 8 case do not have standing, and that they dismiss it, thereby letting the lower court findings that Prop 8 was unconstitutional stand.

I think that they will hear the US vs. Windsor case, and they will find in favor on Edie Windsor on grounds that DOMA violates here 14th Amendment right to equal protection under the law. Justice Kennedy will side with the four moderate justices.

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filmfann's avatar

@ETpro Unfortunately, there aren’t four moderates on the court.
By my count, Scalia, Thomas, and Alito are all hard line Conservatives. Roberts and Kennedy trend to the hard line, but occasionally surprise you with a moderate response. Breyer is a moderate, while Kagan, and Sotomayor are moderate to liberal, and Ginsberg is hard liberal.

SadieMartinPaul's avatar

The odious Defense of Marriage Act will be no more.

ETpro's avatar

@filmfann Class them as you wish. Senator Bernie Sanders is hard liberal. I don’t see Justice Ginsberg as such. The pendulum has just swung so far to the rabid right recently that any sane judges who remain on the bench seem to be flaming liberals in contrast.

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