SCOTUS/Prop 8 predictions?

Ancalagon · Mar 30, 2013

Order2Chaos said: ↑

My prediction: narrow prop 8 ruling applying only to CA, DOMA overturned on federalism grounds.
Click to expand...

Yes. And in a way I think this is the best way. Keep the money and energy out there winning people over in state after state. Come back in 10 years when it is only a couple backwards ass fundy states banning it and THEN rule on it based on 14th grounds. Avoid the Roe experience of freezing the battlelines in place. Yes, it means short term some homosexual couples will be denied equal treatment, but long term I believe the end result will be better for all involved.

Nova · Jun 12, 2013

interesting and compellingthesis:

What is surprising, however, is that in this quest for insights into Kennedy’s frame of mind, pundits have virtually ignored one of the few things he flat-out told us about his views on same-sex marriage.

In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.

But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.

The gender-discrimination argument is not complicated. Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied. The crucial difference between Alice and Bob is, of course, their gender—not their sexual orientation. In fact, as we all know, omosexuals have long been free to marry members of the opposite sex. Thus, Kennedy is wrestling with the possibility that Bob is being discriminated against because he is a man and not because he is gay. And, if so, should the court apply the same level of heightened protection it traditionally applies whenever the government treats men and women differently?
.....

A standard response to the gender-discrimination argument is that it’s not discrimination if both genders are denied the same benefit. In other words, because all men can only marry women and all women can only marry men, everyone is being treated equally. But this response is easily rebutted.

Laws that once prohibited interracial marriage were often described in the same “everybody loses” terms. Take, for example, Virginia’s anti-miscegenation law, which the Supreme Court declared unconstitutional in 1967 in Loving v. Virginia. The Virginia law declared it a crime if “any white person intermarry with a colored person, or any colored person intermarry with a white person.” Virginia argued to the Court that because the law punished “equally both the white and the Negro participants in an interracial marriage,” there was no Equal Protection violation. White people were free to get married, just not to nonwhites and vice versa. The court disagreed, and declared the law to be racially discriminatory.
.....

The gender-discrimination framework may appeal to Kennedy in other ways, too. During oral argument, he expressed worry about the court about moving too far too fast. Bouncing between metaphors of entering “uncharted waters” or going off a “cliff” with its decision, Kennedy expressed a desire for the court to proceed cautiously “in light of the newness” of the issue.

This approach could help Kennedy with these concerns. He doesn’t have to break new legal ground by declaring a constitutional right to be free from discrimination based on sexual orientation. Instead, Kennedy could turn to the much more developed path of our constitutional protections against gender discrimination. The outcome (constitutional protection for same-sex marriages nationwide) would be revolutionary, but the basis for it (gender discrimination) would be familiar.

The reach of these cases is also naturally circumscribed. A gender-discrimination ruling on marriage would not, for example, determine how much constitutional protection a person might receive if he was fired from his job because of his sexual orientation. Kennedy could save that case for another day. It also does not give fodder to the slippery-slope argument about polygamy, which presents a problem of numbers and not gender.
Click to expand...

http://www.slate.com/articles/news_...he_supreme_court_justice_may_see_banning.html

Full article at the link.

That bit I bolded isn't played up much but might be a huge factor in choosing to rule on this basis (if they do)

There are probably a lot of derivative implications for trans-equality cases as well. but I haven't mulled them yet.

Log in or Sign up

SCOTUS/Prop 8 predictions?

Ancalagon Scalawag Administrator Formerly Important

Nova livin on the edge of the ledge Writer

Log in or Sign up

SCOTUS/Prop 8 predictions?

Ancalagon Scalawag Administrator Formerly Important

Nova livin on the edge of the ledge Writer

Useful Searches