Supreme Court May Decide To Hear Same-Sex Marriage Cases This Week
Possibly a big week for the Supreme Court.
As I’ve noted before, there are a number of cases currently pending before the Supreme Court dealing with the issue of the same-sex marriage. At least two of them deal with the question of whether Section Three of the Defense Of Marriage Act, which defines marriage as being between a man and a woman for purposes of Federal aw, is constitutional, and one deals with the rulings from the 9th Circuit Court of Appeals regarding California’s Proposition 8. At least according to the Court’s current calendar, the Justices will meet this week to decide whether to accept the appeals in all of these cases:
WASHINGTON — After two decades in which gay rights moved from the margin to capture the support of most Americans, the Supreme Court justices will go behind closed doors this week to decide whether now is the time to rule on whether gays and lesbians have a constitutional right to marry.
For justices, the issue is not just what to decide, but when to decide it. In times past, the court has been faulted for waiting too long or moving too quickly to recognize constitutional rights.
The justices did not strike down state bans on interracial marriage until 1967, 13 years after they had declared racial segregation unconstitutional. Yet in response to the growing women’s rights movement, the court in 1973 struck down all the state laws restricting abortion, triggering a national “right to life” movement and drawing criticism even from some supporters that the Roe vs. Wade ruling had gone too far too fast.
Now, the justices must decide whether to hear an appeal from the defenders of California’s Proposition 8, the 2008 voter initiative that limited marriage to a man and a woman..
At the same session Friday, the court will sift through several appeals to decide whether legally married gay couples have a right to equal benefits under federal law. Appeals courts in Boston and New York have struck down the part of the Defense of Marriage Act that denies such a right, and the justices are almost certain to take up a case to resolve that question.
The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound “right to marry” question.
Opinion polls now show a majority of Americans favor marriage equality, and support for it has been growing about 4% per year. On Nov. 6, voters in Maine, Maryland and Washington approved same-sex marriage, bringing the total to nine states.
Does the shift in public opinion suggest the court should uphold gay marriage now, or wait for more states, perhaps a majority, to legalize it?
Notwithstanding the well-known comment that the Supreme Court follows the election returns, I am not convinced that the success that marriage equality had at the ballot earlier this month is going to determine whether the Justices decide to accept these cases. As we all are, this is an issue that is become more and more important in the United States, and one that has now obtained the support of at least a narrow majority of the American people according the polls. However, I honestly don’t think that this is going to be what motivates them in deciding whether or not to accept a case. Instead, they are likely to look to more esoteric legal issues.
As I’ve noted in several posts on this issue before, I don’t think there’s any question at all that the Justices will accept the appeals of the various cases dealing with DOMA. As a general rule, when there are multiple Federal Courts issuing rulings that a law passed by the United States Congress is unconstitutional, the Supreme Court is going to accept that case. If they didn’t, then we’d end up with a situation where a particular law would be considered valid in some parts of the country, at least as far as the Federal Courts are concerned, and invalid in others. So, I would expect that the Court will accept the appeals on the DOMA cases, and will likely consolidate them for the purposes of appeal since they all tend to raise the same issue.
The Proposition 8 case raises different issues. While the original opinion in this case from the District Court was quite far-reaching in its argument that the 14th Amendment itself made any law against same-sex marriage invalid, the opinion of the 9th Circuit pulled back from that precipice and argued that the principle reason that Proposition 8 was unconstitutional was that the state, via the California Supreme Court, had granted a civil right that was then repealed via a popular referendum. This was a very narrowly tailored, fact specific, opinion that arguably only applies to the state of California, or any state that has legalized same-sex marriage and then repealed it. The impact of the 9th Circuit’s opinion in this case is, arguably, very limited and may be reason enough for the Justices to decide to forego accepting the appeal. This would, of course, mean that same-sex marriage would be the law of the land in the nation’s most populous state.
There is another possibility to keep in mind. The fact that these cases are on the Court’s calendar for a conference this week does not mean that we’ll hear of a decision this week. As that did just a couple weeks ago, the Court could decide to defer decision on whether or not to accept the appeals in these cases to a future date. At the very least, that would indicate that there are not four Justices who want to hear any of these cases, or perhaps, that they’d like to defer the entire issue to the October 2013 term.
I’m sort of torn on this one. I think that the votes to grant cert to the DOMA cases certainly exist, and we’ll be seeing those cases (or at the least Windsor) on the calendar this term.
I’m of the opinion that the votes to bring the state level bans under review exist as well, but given how the 9th narrowed the opinion in Perry, I’m not entirely unconvinced that the favorable leaning justices won’t whiff that case in favor of waiting for one that gives them a clearer path to overturning the bans. Roberts has signaled a tendency to like narrowly constructed rulings, which would argue in favor of a ruling tracking with the 9th’s reasoning were Perry to come before the court. Because of that, I’m not entirely unsure that they won’t end up passing on Perry, which is unfortunate.
That said, the delays on announcing cert decisions on these cases almost certainly portends that Roberts, concerned as he seems to be with the perception of the court and stung by the backlash they’ve generated in previous rulings, delayed these considerations for reasons unrelated to their inherent suitability for review. As much as I or any other lawyer want to believe in the concept of an apolitical court, that’s really not the case.
As you noted, DOMA cases are a near-lock to be granted cert, with a healthy but far from conclusive (60%?) chance that Kennedy will vote with the four non-conservatives and strike Section 3 down.
Prop 8 on the other hand seems much more unlikely, as it would require the court to legislate from the bench. Legislating from the bench certainly isn’t a problem for the 5 conservative justices (indeed, that’s what Kennedy sees his job as), but they do so exclusively from the right.
@Geek, Esq.:
I’d have to take issue with the contention that Kennedy is a conservative justice. If anything, he has become a center bencher with a decided tendency to tack left on social issues.
He’s always had a tendency to look at himself in the mirror when composing opinions, especially those opinions he writes for the majority (which is why Stevens assigned Lawrence to him to begin with). Ginsburg is nothing if 1) adverse to attention and 2) not remotely stupid. Were Perry to come before the court, I’d expect a full-press memo flood lobbying Kennedy to encompass a broader view than the 9th espoused on this case. In the event that he got led to where he arguably already wants to go, Ginsburg would waste no time in assigning him the opinion, and that assumes that the chief would be among the negative votes (which I’m not entirely convinced of either).
That said, how is overturning an act of Congress (DOMA) not legislating from the bench, but overturning a state level referendum is? That seems a bit partisan.
@HarvardLaw92:
DOMA is discriminatory on its face and in its allocation of federal benefits, whereas marriage tends to be a matter left to the states, with only rare interventions by the SCOTUS (e.g. Loving v Virginia).
Kennedy was adamant about striking down the ACA in its entirety due to a newly invented distinction between action and inaction. Whether one prefers to refer to him as a conservative or right wing activist who’s moderate on social issues, no difference to me.
I have a hard time seeing what the legitimate legal argument would be for upholding Section III of DOMA.
@Geek, Esq.:
Exactly my point: these state level bans are no less discriminatory on face or any less driven by animus than DOMA was / is. It seems a bit tortured to assert that they can possibly find a 5th amendment rationale for an equal protection violation with regard to DOMA (in an amendment for which equal protection is an implied causus to begin with), yet sidestep the same rationale from a 14th amendment standpoint at the state level when that amendment’s equal protection guarantee is explicit.
Sodomy was also an issue which tended to be left to the states, in which SCOTUS had rarely intervened – until it did.
At basis, Vaughn’s ruling was a letter written directly to, and intended to appeal to, Kennedy’s sense of positioning on social issues. I’d wager that the panel from the 9th got that message loud and clear, and attempted to nullify it by giving him another way out. Whether he would take it is a subject of much debate, but I think that to assume the position that “the court tends to defer to the states” on this issue is both short-sighted and narrow, especially in an environment where they are likely to be simultaneously weighing the validity of a federal ban which has a direct import, in a variety of ways, on the state level issues. His attitude on tax policy or the commerce clause is, in my opinion, immaterial here. His attitude on social policy, and the appeal to his ego that will undoubtedly be played out here by the liberal bloc as it was played out in Lawrence, will rule the outcome.
And again, that is assuming that they don’t decide to whiff this one in favor of waiting for a better setup down the road.
With regard to DOMA, I don’t think we are looking at a 5-4 ruling. The constitutional issues are too clear cut IMO.
That said, I don’t believe either Thomas or Alito will care, and I feel pretty certain that Scalia’s antipathy towards homosexuals will override any surviving sense of the law he has left.
Kennedy I think is a lock for a yes vote. What is up in the air is how the chief goes on this issue, and suspect he may surprise some folks in that regard. Accordingly, I’m leaning towards a 6-3 ruling in favor of overturning Section 3.
@HarvardLaw92: That wouldn’t surprise me. IANAL, but Section III just seems so blatantly unconstitutional that I really can’t see how one comes up witht a good-faith non-tortured argument to uphold it.
For what its worth, there have been quite a few decisions that the Court has made where my lay person “gut check” doesn’t agree with their conclusion, but it is clear that thought went into it and I can follow the logic when I read the analysis. I highly doubt that would be the case with Section III.
@Gromitt Gunn:
As an attorney, there are few things I’d love to believe in more than the concept of an apolitical court that is driven solely by a dispassionate regard for the law, but unfortunately, that just isn’t the case. It never has been.
That said, if the three cranks want to pontificate in their dissents, let them. At the end of the day, all that really matters is the vote count and the reasoning in in the majority opinion. A 6-3 ruling, or for that matter a 5-4, overturns DOMA no differently than a 9-0 would.
I doubt this will be one of those cases where it starts off as a 5-4 decision one way and ends up as a 5-4 decision the other way (as is what happened in Chakraborty.)
We don’t have any circuit splits here, do we?
@grumpy realist:
There are a variety of challenges in process, notably in the 9th and in CAVC. Some bankruptcy courts have already weighed in against DOMA as well, so basically its a mess.
@HarvardLaw92:
State laws essentially codified the centuries of prior practice. DOMA was new legislation that affirmatively created a discriminatory regime in the distribution of federal benefits.
@Geek, Esq.:
Which does not excuse them from equal protection review, most especially when those prior practices stem from animus (as they did in Loving and as they do in regard to these current SSM bans).
Heck, I don’t even see a defensible argument in which these turkeys pass rational basis review.
@HarvardLaw92:
Gay sex is icky? I’ve not really heard any defense of DOMA better than that.
I will be very surprised if the Supreme Court does not hear the Proposition 8 case. Regardless of how “narrowly” the 9th Circuit decision was tailored, that decision basically says that once a state Supreme Court decides that something is a constitutional right, the citizens have no recourse, not even amending their state constitution. That would be an unprecedented judicial power grab. And, leaving it in place would only make sense if the SCOTUS is prepared to rule that SSM is a federal constitutional right.
@Septimius: I know, right? How dare people expect their civil rights to be protected from the whims and passions of mob rule? Its not like we have a long tradition of guarding against the tyranny of the majority going back to Founding Father John Adams, or anything like that!
If I were on the SCOTUS with plenary powers to issue single-justice rulings (that would be scary, no?), here’s what I’d do:
– I’d cast DOMA to the dustbin of history. That was one of the worst laws of the past 20 years. Domestic relations are the archetypes of state law issues.
– I’d uphold Prop. 8. That’s merely the flip side of the DOMA conundrum. The definition of marriage is a state law issue and Prop. 8 was a duly-passed state constitutional referendum. I don’t believe there is a federal Constitutional “right” for same-sex couples to be “married” under state law. I don’t see it as a strict scrutiny question, given that the Constitution says nothing about same-sex couples, but even assuming arguendo that strict scrutiny is the standard then I’d find that individual states have compelling interests in promoting procreation and of preserving comity between secular civil marriage laws and the tenets of every major organized religion.
That all aside, from a practical standpoint I’ve always felt the gay and lesbian left wing made a colossal mistake in pushing for same-sex marriages and even for same-sex civil unions. Just wait until the divorces/dissolutions start flowing in earnest and a community that for generations skated by scott free all of a sudden has to face the specters of alimony, child support, custody disputes, community property, partitions, property settlements, will contests, forced shares, intestate succession contests, interpleaders, etc. Always beware the laws of unintended (and unwanted) consequences.
@Tsar Nicholas: You realize that the exact same arguments were made about miscegenation laws….
@Gromitt Gunn:
Passing an amendment to a state constitution through a ballot initiative is not mob rule. It’s called democracy.
@Septimius: Go read Federalist Paper 10 and then get back to me, son. Mob rule and direct democracy are not mutually exclusive, in fact they are frequently one and the same. That is why we have specific individual civil rights laid out.
@Tsar Nicholas:
It was the left that wanted marriage it equality, it was the right. The Gay Liberation Movement wanted to permanently disassociate from the trappings of marriage as a heteronormative institution that reinforced gender roles and enslaved women. It was the gay conservatives, led by folks like Sullivan, that advocated for the normalization of gay and lesbian relationships through marriage.
@Septimius:
The majority voting to suppress the rights of a minority is the very f’ing definition of mob rule.
@Gromitt Gunn:
Yes, and the specific individual civil rights for the people of California are laid out in their state constitution. A state constitution that they lawfully amended because their state Supreme Court invented a “right” to SSM that the majority of Californians do not believe exists.
@Septimius:
You act like this is some new right. It’s not a new right. It’s the right to marry the consenting adult of your choice, which has been stated to be one of the fundamental rights of man by the Supreme Court. In Loving v. Virginia, they found that denying that right on the basis of racial discrimination was “directly subversive of the principle of equality at the heart of the Fourteenth Amendment”. I have a hard time thinking of a possible way in which any honest and consistent person could distinguish the two.
@Ben: but, but, it’s icky. (Yes, this would be snark)
@Septimius:
You need to spend some time studying the supremacy clause. State constitutions are no less inferior to the US Constitution than state statutes are, which is to say that they are both inferior.
The citizens of a state may not amend their constitution in ways that fall afoul of the US Constitution no differently than the legislature of a state may not pass laws which violate the same. Federal courts, culminating in SCOTUS, have the power of review over both, and they get the last word.
The short version is that these state level bans, whether statutorily or constitutionally implemented, arguably violate equal protection, which puts them in direct conflict with the 14th Amendment. In that scenario, the 14th Amendment governs.
In fact, I can’t, as I said earlier, see any rationale for them that doesn’t devolve to animus, and I think that the court has been more than clear already about animus as a basis for abrogating equal protection.
@Ben: Of course it’s a new right. Loving v. Virginia did not recognize the right to marry the “consenting adult of your choice.” The Loving decision recognized the right to marry the opposite sex person of your choice. Otherwise, SSM would have been legal for the past 45 years and we wouldn’t be having this discussion.
@Septimius:
Yes, but we are not a democracy. We’re a constitutional republic. You guys seem scope locked on the states rights aspects of this issue, and that’s a pointless debate IMO. The 14th Amendment is in no way vague.
@Septimius:
It’s an extension of the same concept – namely that the state may not arbitrarily deny access to a state created construct without having at least a rational basis for doing so. Pointedly, and this is important to grasp before delving any further into this concept, animus is not an acceptable rational basis. That people dislike something, or are repelled by it, is immaterial from an equal protection standpoint. It’s the fundamental speed bump of equal protection – the people you don’t like are equally protected by the same laws that protect you.
Short version: anti-miscegenation laws barred access to marriage for interracial couples simply because the public didn’t like the idea of interracial marriage. These SSM bar access to same-sex couples on the same basis, and that’s just not an acceptable basis on which to abrogate a right as fundamental as equal protection. It’s not even close to being acceptable.
The underlying truth to this issue is this – under the doctrine of equal protection, these folks are presumed to have an equal right of access to civil marriage. It’s not remotely up to them to demonstrate why they should be allowed to get married. The law presumes that they have that right. The burden falls entirely upon the state, with respect to demonstrating a rational basis (aside from animus) why they SHOULDN’T be allowed to do so. People seem to get that concept entirely backwards.
@Septimius:
I don’t recall the Supreme Court specifically referring to the “opposite sex” in the text of their decision. Time and time again in the decision, they refer to “person”, “citizen” and “individual”, not “man” and “woman”.
To clarify, Septimus, I’m not saying that the Supreme Court had same-sex marriage in mind in the Loving case. That issue wasn’t before the court in that case (nor has it ever been before the court in any case yet). What I am saying is that they did not specifically distinguish it, and the reasoning they used in the Loving case can be quite easily applied to same-sex marriage, and I do not see a convincing argument to distinguish the two. And to save you time, no, I don’t consider “it’s a sin”, “it’s icky”, “it’s an abomination” or “that’s just the way we’ve always done it” to be convincing arguments. Oh, and neither is procreation, otherwise a state would have the power to deny sterile heterosexual couples from getting married. And if you say that a sterile heterosexual couple can always adopt, foster or use a surrogate, so could a gay couple.
@Ben:
It has, actually, although the court decided to punt in that instance.
In Baker v. Nelson, the court dismissed the appeal for, in their opinion, lack of a substantial federal question. Because the case came before them on mandatory appellate review, as opposed to certiorari, the summary dismissal constituted a decision on the merits and became binding precedent.
Of course, that happened in 1972, so it’s essentially meaningless from the perspective of where the court will go with this issue 40 years later.
@HarvardLaw92: You need to read the 9th Circuit decision. The 9th Circuit did not rule that SSM is a federal consitutional right, so supremacy doesn’t apply. They ruled that Proposition 8 is unconstitutional because it took away a right for an illegitimate reason. As I wrote in my initial post, this is an unprecedented judicial power grab. Essentially, the California Supreme Court can invent any new right it wants, and the people of California are powerless unless they have a reason that the 9th Circuit finds legitimate. That is scary.
Obviously, the SCOTUS will have to rule on whether or not SSM is a federal constitutional right. But, since they haven’t yet done that, the citizens of California should be allowed to amend their constitution to prohibit SSM.
And no, the federal courts and SCOTUS don’t get the last word. Ultimately, the U.S. Constitution can be amended and the citizens get the last word.
@Septimius:
I think you need to read it again. Reinhardt’s reasoning doesn’t do much further than to essentially state that the people of California may not vote to add provisions to their constitution that abrogate the rights of others when those provisions are driven by animus. It was Reinhardt doing his best to find a way to confine the effect of his ruling only to California, and it’s a pretty tortured ruling in my opinion.
The issue in play in not whether marriage itself is a constitutional right, but instead one of “once the state has decided to implement the construct of civil marriage, it may not limit access to that construct to any citizen without having a rational basis for doing so.” Your reasoning goes to whether or not the state has to recognize the construct of civil marriage at all, and that is a moot point. The states decided long ago to create that construct of their own accord. SCOTUS won’t be deciding the question of whether or not a right to marriage exists, but instead it will be deciding on what bases access to that existing construct may be limited.
Sure it can, but it’s incredibly difficult, and it is so for a reason. IMO, the window for possibly amending the US Constitution to deny SSM passed long ago. You’d never get it ratified now, so it becomes another moot point. The court will have the last word on this issue.
Just as it did with sodomy laws. Just as it did with anti-miscegenation laws.
In other words, Septimius, you’re getting bogged down in a question that doesn’t exist. The court isn’t tasked with creating or approving some new construct of marriage that has never existed before. From a legal standpoint, same-sex marriage and opposite sex marriage are not distinct constructs. They are permutations of the same construct – namely civil marriage itself.
So the question is not one of “do gays have a constitutional right to get married?” That question became moot when the states created the construct of civil marriage itself. The question is instead one of “on what bases can the state defend limiting access to its construct of civil marriage?”
That makes it an equal protection question. The question of whether or not a constitutional right to marriage exists (for anyone) is immaterial. It has already been rendered moot by the states themselves creating civil marriage.
Those who are opposed to SSM need to realize that they are on the losing side of history…it’s only a matter of time before SSM is legal in all 50 states…these people who are trapped in the past with their bigotry will need to learn how to get used to SSM…much like bigoted people had to learn how to get used to interracial marriage and other laws outlawing segregation…
@HarvardLaw92: Nonsense. First, just because a state has created the construct of a civil marriage does not automatically make it a constitutional right. Just because my state has created a construct of offering property tax rebates to senior citizens doesn’t give me the right to a tax rebate. Second, same sex marriage and opposite sex marriage are not permutations of the same construct if the definition of civil marriage is recognized as one man and one woman. If marriage is defined as the legal union of one man and one woman, then it is a construct that applies to one man and one woman, not two men and not one man and four women.
But ultimately, my opposition to the 9th Circuit ruling has little to do with SSM. I think the SCOTUS should hear it and strike it down because I think it sets a horrible precedent to say that the citizens of any state must satisfy a federal judge in order to amend their constitution, especially when the amendment is perfectly constitutional under current SCOTUS precedent.
Ahh, so before Loving v. Virginia, it was just fine for citizens of Alabama or Mississippi to amend their state constitutions to completely outlaw interracial marriages…under that logic, once SCOTUS declares SSM as being constitutional, the problem will be solved…
@Tsar Nicholas: What a stupid argument. Anybody who is worried about alimony shouldn’t get married. And I am more then happy to have divorce laws apply to me as long as inheritance and joint tax benefits are extended. I am not looking to becoming richer from my relationship. And I hope I wouldn’t resent paying support to someone I loved enough to marry. I am looking to be equal. FYI as a single gay man who will never have kids I am happy to pay school tax though I will never have kids. Each generation is responsible for the next. Stop looking to pay less and start doing your fair share.
@Septimius:
I can see that I’m just not getting through to you, and I’m not interested in teaching Con Law for Armchairs. I’ve explained it several times now. We’ll just have to leave it at that.
@Septimius:
The state would still need to prove that there is some interest in granting the tax rebate to senior citizens and not everybody.
I don’t get what’s so hard about this. It would obviously be unconstitutional if said tax rebate only applied to white people. Discriminating against classes of people isn’t very easy for the state to do. Which is good. State’s shouldn’t have the power to impose arbitrary or capricious classifications. And the classifications it does impose should have to be explained and defended. How else should things be in a free society?
@HarvardLaw92: Ginsburg would not assign any opinion. Kennedy is senior to her by five years and, if in the majority, would assign it to himself. What are they teaching people at Harvard? Justice Stevens assigned Kennedy the Lawrence decision because being struck down by a conservative Reagan appointee made it far more impactful.
Furthermore, I think Ginsburg does generally think decisions like Roe were precipitous–ie ahead of public opinion. But the woman is a fierce civil rights advocate with a limited number of years to serve. Two or three at most. Look for her to concur but file a dissent calling for full equality. She is not going to let a timid affirmation of civil rights be her last word on this issue. And she will probably read her dissent from the bench. She can be quite provocative too.
Marriage should be left to the church. “Civil unions” belong to the government province. I just wonder in a few years how the courts will feel about polygamous unions and adult – child unions. It will come. Will the government then give in and allow any and all type of “unions”? Or will it feel that some sort of sane standard must remain in this country to separate us from animals and anarchy ?
@Laurence Bachmann:
You’re absolutely correct on that one, sorry. Kennedy is senior to Ginsburg and would ostensibly assign the opinion to himself. The perils of trying to do too many things at once. My apologies for the error. That said, I believe the rest of the argument survives. Kennedy has always had one eye towards the mirror.
With regard to Ginsburg and Roe, I don’t believe that she thinks that it was precipitous so much as she postulates that it might have resulted in less rancor if it has been allowed to evolve organically. I disagree with her on that one. The folks who are against abortion are as emotionally driven today as they were 40 years ago, and they’ll be just as emotionally driven about the issue 40 years from now.
I believe, and she has validated that belief, that in her opinion Roe reached the right conclusion via the wrong reasoning. In her eyes, Roe was a gender question, not a privacy question, and I see some validity in her thinking there.
@HarvardLaw92: I was just kidding with the teaching quip, you obviously know your stuff. I would disagree with one aspect of your observation. I don’t think the the comparison of marriage equality and abortion is apples to apples. As you rightly note the emotional intensity opposing abortion burns as brightly today as 40 years ago with no sign of letting upYou don’t see that kind of intensity with gay marriage. There is no movement in the 10 states approving gay marriage to roll back the clock. In NY where I live there are no protests when gay marriages are performed by justices of the peace–it’s as though it has always been. No backlash whatsoever. I realize NY is not Alabama but thankfully there aren’t that many Alabama’s. As long as people’s religious institutions don’t have to participate there isn’t much of a ruckus.
I think the California Supreme Court decision will be upheld without comment and DOMA overturned as a violation of the 14 th amendment. On that we both agree. After that gay rights groups will push for marriage equality referendums in NJ, IL and RI. If successful in those states they will be able to say marriage equality exists for 40 % of the population. That is when a test case will be pushed–with a Rosa Parks like contrivance of multiple couples suing for the right to marry in states that forbid it–Texas, Florida, and Ohio would be my guess. So many they can’t be ignored
When that happens, and I think it is only three or four years away, it will be a slam dunk for marriage equality. I think Kennedy is fairly certain and Roberts likely. The latter’s health care ruling shows he cares very much about how the Court is perceived and he is not going to want to be on the wrong side of this–the Justice Taney of the 21st century. 6-3 with Scalia seething.
Nice chatting
@Laurence Bachmann: “6-3 with Scalia seething. ”
Can we really be so sure that Alito won’t join the majority? Are there any opinions which he authored/joined that can give us any indication on how he will vote on gay rights issues?
@Sejanus: No, truthfully I can’t be sure alito wouldn’t join a majority. There is no evidence he believes the 14th Amendment applies only to freed slaves a la Scalia, but he is fervently Catholic (the Red Mass sort that asks the Holy Spirit for guidance) and rock bed conservative–not a whiff of libertarianism. So I wouldn’t count on him. A long shot at best. 7-2 would be nice: Scalia seething and writhing…..but not likely.