TheProgressivePatriot
Gold Member
With the decision on the constitutionality of same sex marriage looming, I am going to go out on a limb and, not only predict the outcome, but the reasons for it as well as the legal theories behind a ruling for marriage equality
I have reason to believe that they will rule that all state bans are unconstitutional, forcing states to legislate marriage equality, or face litigation in which they will surely not prevail.
There are two factors that will result in SCOTUS ruling that same sex marriage is a right. First, the makeup of the court:
Four of the current justices, Ginsburg, Sotomayor, Kagan and Breyer will almost assuredly vote in favor of same sex marriage. Three are a lost cause: Thomas and Scalia, followed closely behind by Alito. So the wild cards are Roberts and especially Kennedy.
Justice Kennedy wrote the Court's decision on Romer v. Evans on May 20, 1996: An amendment to the Colorado state constitution that would prohibit the recognize gays as a protected class was passed by a referendum. The law was invalidated by the high court.
Justice Kennedy also wrote the Court's decision on Lawrence v. Texas on Jun 26, 2003 The Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states
Kennedy is far from hostile to gay rights. In the DOMA decision he wrote:
“The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” [ ] Yes, there is a strong emphasis on state’s rights, but there is also an unmistakable appreciation for the plight of gay people as well. http://en.wikipedia.org/wiki/United_States_v._Windsor
As for Roberts, In 1995 Roberts agreed to help represent the gay rights activists as part of his law firm's pro bono work. The case before the Supreme Court, Romer vs. Evans, dealt with a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing. A 6-3 ruling struck down the initiative. However, I would put my money on Kennedy before Roberts and settle for a 5-4 split in favor of equality
Secondly, given the trajectory established by the lower courts, it is likely that state laws banning SSM will be subjected to strict scrutiny at SCOTUS and thus will not stand. Courts apply strict scrutiny when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin. [It is not a stretch to see how the court might extent strict scrutiny to sexual orientation]
In the DOMA ruling, the high court did uphold the appeals court ruling on the basis of the 5th amendment’s due process clause as opposed to 14th ‘s equal protection under the law provision and in doing so, found a way to invalidate the section of DOMA that denied federal benefits to same sex married couples, while re-affirming the rights of the states to define marriage.
However, it’s also important to note what was not said. They never said that no restrictions on the right of states to regulate marriage would ever be placed on them. In fact, there is already precedent that establishes the fact that the right of states to regulate marriage is not absolute. That precedent of course is Loving v. Virginia. In that case, he court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Chief Justice Earl Warren scribed the unanimous opinion for the U.S. Supreme Court. In it, he declared that, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” If the highest court in the land defining marriage as one of the “basic civil rights of man” doesn’t qualify marriage as a legal right, I don’t know what would.
Thus, the application of strict scrutiny based on marriage being a basic right will be hard to get around.The other road to strict scrutiny would be to establish homosexuals as a suspect class. To apply strict scrutiny on the basis of class, the class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.
It is not a major stretch of the imagination to see how, at some point SCOTUS could view gays in the same light as those racial minorities and declare that same sex marriage is a right as is inter racial marriage today and thus requiring strict scrutiny of any laws denying them equal rights including the right to marry.
In the Proposition 8 case, Judge Vaughn Walker at the US district court level stated that proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect. Judge Walker characterized the right at issue as "the right to marry", which, he wrote, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", The point here is that Walker was willing to rule on the basis of strict scrutiny.
And during the proposition 8 hearing at SCOTUS there was this exchange between JUSTICE SOTOMAYOR and Mr Cooper, attorney for the petitioners
JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits …
MR. COOPER: Your Honor, I cannot.
JUSTICE SOTOMAYOR: if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing?
To touch again on Evans v. Romer (1994) — Colorado’s Supreme Court said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2. The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.” Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test. That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.”
In other words, the high court has not found gays to be a “suspect class” but arguably they never really said the opposite. When the first marriage case gets to SCOTUS, I believe that only the three most conservative Justices will be willing to fly in the face of all reason and logic and decide that strict scrutiny is not warranted-because, unlike Kennedy and Roberts, all that they care about is ideology.
I have reason to believe that they will rule that all state bans are unconstitutional, forcing states to legislate marriage equality, or face litigation in which they will surely not prevail.
There are two factors that will result in SCOTUS ruling that same sex marriage is a right. First, the makeup of the court:
Four of the current justices, Ginsburg, Sotomayor, Kagan and Breyer will almost assuredly vote in favor of same sex marriage. Three are a lost cause: Thomas and Scalia, followed closely behind by Alito. So the wild cards are Roberts and especially Kennedy.
Justice Kennedy wrote the Court's decision on Romer v. Evans on May 20, 1996: An amendment to the Colorado state constitution that would prohibit the recognize gays as a protected class was passed by a referendum. The law was invalidated by the high court.
Justice Kennedy also wrote the Court's decision on Lawrence v. Texas on Jun 26, 2003 The Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states
Kennedy is far from hostile to gay rights. In the DOMA decision he wrote:
“The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” [ ] Yes, there is a strong emphasis on state’s rights, but there is also an unmistakable appreciation for the plight of gay people as well. http://en.wikipedia.org/wiki/United_States_v._Windsor
As for Roberts, In 1995 Roberts agreed to help represent the gay rights activists as part of his law firm's pro bono work. The case before the Supreme Court, Romer vs. Evans, dealt with a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing. A 6-3 ruling struck down the initiative. However, I would put my money on Kennedy before Roberts and settle for a 5-4 split in favor of equality
Secondly, given the trajectory established by the lower courts, it is likely that state laws banning SSM will be subjected to strict scrutiny at SCOTUS and thus will not stand. Courts apply strict scrutiny when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin. [It is not a stretch to see how the court might extent strict scrutiny to sexual orientation]
In the DOMA ruling, the high court did uphold the appeals court ruling on the basis of the 5th amendment’s due process clause as opposed to 14th ‘s equal protection under the law provision and in doing so, found a way to invalidate the section of DOMA that denied federal benefits to same sex married couples, while re-affirming the rights of the states to define marriage.
However, it’s also important to note what was not said. They never said that no restrictions on the right of states to regulate marriage would ever be placed on them. In fact, there is already precedent that establishes the fact that the right of states to regulate marriage is not absolute. That precedent of course is Loving v. Virginia. In that case, he court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Chief Justice Earl Warren scribed the unanimous opinion for the U.S. Supreme Court. In it, he declared that, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” If the highest court in the land defining marriage as one of the “basic civil rights of man” doesn’t qualify marriage as a legal right, I don’t know what would.
Thus, the application of strict scrutiny based on marriage being a basic right will be hard to get around.The other road to strict scrutiny would be to establish homosexuals as a suspect class. To apply strict scrutiny on the basis of class, the class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society.
It is not a major stretch of the imagination to see how, at some point SCOTUS could view gays in the same light as those racial minorities and declare that same sex marriage is a right as is inter racial marriage today and thus requiring strict scrutiny of any laws denying them equal rights including the right to marry.
In the Proposition 8 case, Judge Vaughn Walker at the US district court level stated that proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect. Judge Walker characterized the right at issue as "the right to marry", which, he wrote, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", The point here is that Walker was willing to rule on the basis of strict scrutiny.
And during the proposition 8 hearing at SCOTUS there was this exchange between JUSTICE SOTOMAYOR and Mr Cooper, attorney for the petitioners
JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits …
MR. COOPER: Your Honor, I cannot.
JUSTICE SOTOMAYOR: if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing?
To touch again on Evans v. Romer (1994) — Colorado’s Supreme Court said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2. The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.” Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test. That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.”
In other words, the high court has not found gays to be a “suspect class” but arguably they never really said the opposite. When the first marriage case gets to SCOTUS, I believe that only the three most conservative Justices will be willing to fly in the face of all reason and logic and decide that strict scrutiny is not warranted-because, unlike Kennedy and Roberts, all that they care about is ideology.
