USA: How Will the Supreme Court Rule on Marriage Equality?

Written by scott on June 12th, 2013

Defense of Marriage ActMore thoughts, analysis and speculation on the upcoming Supreme Court rulings on Prop 8 and the Defense of Marriage Act.

John Gallagher at Queerty wonders if the Supremes follow marriage equality polling:

One way or another, public opinion has to count. It did in the past, to our detriment. It was public opinion on homosexuality that led the court in 1986 to uphold criminalization of gay sex because to do to otherwise would be to “cast aside millennia of moral teaching.” … every day it becomes clearer that the public has the Court’s back on marriage equality. The question is, does it have ours?

Yahoo! News profiles a lesbian couple getting married in New Jersey in the shadow of the pending rulings:

…the couple ultimately decided to keep the debate surrounding same-sex marriage out of their June 1 ceremony, held at a rustic farm in Holmdel, N.J., in front of 120 friends and family members–and even a few pets–on an uncharacteristically hot spring day. “I felt like it wasn’t the right place,” Angie, 31, says. “The people there didn’t need to hear that message–they already support it.” Yet with the Supreme Court expected to deliver its opinions on a pair of pivotal gay marriage cases later this month–one challenging California’s Proposition 8, a voter-approved ban on gay marriage, the other the Defense of Marriage Act (DOMA), which bars the U.S. government from recognizing same-sex marriages, even in states that allow them–the politics were hard to ignore.

It will be beautiful day when we can get married without having to think about the politics of it – just like every straight couple. Our own wedding, on Nivember 1st, 2008, was a beautiful celebration, but it was done under the gun of Prop 8, the passage of which forced our hand and meant that we had a much smaller and earlier celebration of our wedding vows than we had hoped.

At the Huffington Post, Chris Weigant makes a couple of predictions. On Prop 8:

My prediction all along — ever since the cases were initially heard by the Supreme Court — is that the Proposition 8 case is going to win on very narrow grounds. California took a unique path to where it stands today, with gay marriage being legal for a certain time, and then becoming illegal. I am aware of no other state that has trod the same legal path, so the Supreme Court can easily limit their ruling’s effectiveness to California alone.

On the Defense of Marriage Act:

I think the Supreme Court is going to create this waiting period, so that it can wait a few years before making the type of sweeping ruling many are hoping for this month… I think that DOMA will be struck down — completely, I hope, but perhaps just partially. I think that the federal government will begin treating gay married couples like all other married couples. Since I’m going out on a limb here anyway, I’ll even predict that Chief Justice John Roberts joins the winning side in each case for two 6-3 decisions. But I don’t think that this month is going to see the Supreme Court even rule on the basic question of whether gay marriage is a fundamental constitutional right.

Lisa Keen at Queerty also focuses on Chief Justice Roberts:

His potential to sit squarely on the conservative wing on gay-related matters is probably mitigated by his age (58) and the fact that he has an openly gay relative, 48-year-old Jean Podrasky of San Francisco. Roberts felt comfortable enough with Podrasky to include her as his invited guest during his confirmation hearing in 2005 and to provide her with tickets for special guest seats at the marriage oral arguments.

Eric Schulzke at Deseret News thinks the Court will choose caution:

One reason the Court may be reticent to decide Proposition 8 is that justices are historically very sensitive to the Court’s unelected status, and consequently want to avoid making a sweeping decision overturning laws in the majority of states prohibiting gay marriage. “Some people could say this is the way the trend is growing, let’s just ride the wave,” Infanti said, “but others could say, the trend is still early. We are not talking about more than half the states, or three quarters of the states having adopted same-sex marriage.” It’s easy to forget, Infanti noted, that the Supreme Court did not decide until 1967 that state laws against interracial marriage were unconstitutional, at a point when relatively few states still had them on the books.

Over at The Hill, Sam Baker agrees that these decisions are likely to come at the very end of the term:

The marriage rulings will likely be the last ones released before the justices leave town for summer vacations and teaching positions, although the specific timing is hard to predict. The court doesn’t announce when specific decisions are coming, or even set a fixed end date by which all decisions will be released. But the last rulings, which are usually the most controversial, tend to come out at the end of June. (The court’s ruling on ObamaCare, for example, was released June 28.)

And finally, LGBT Weekly has a new infographic from HRC showing possible outcomes in the two cases:

Take a look below at the Human Rights Campaign’s infographic which shows some of the more likely outcomes from the Supreme Court arguments in the Prop. 8 and DOMA cases.

DOMA/Prop 8 HRC Infographic

 

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