I tried to explain this situation with the USSC to a friend of mine. And she came up with a startling little conspiracy theory;
What if the conservative justices won't take up the issue because they know they'd lose. So they're leaving the issue without binding precedent waiting for one of their fellow justices to die and be replaced. With a different court mix, they might be able to institute support for a gay marriage ban affirmation ruling.
I think its far fetched. But its definitely interesting.
Interesting concept, it opens up more questions though. If Ginsburg retires after the mid-terms so that it will be a Democrat President making the appointment, that means that Obama will be the appointing President.
Now, could the Senate filibuster a Supreme Court nomination for 2-years hoping a Republican President steps into the office in 2017? If we Republicans tried that, that wouldn't play well in the media during the entire Presidential primary and run-off season leading up to the election. It would divert from the message of job growth and fiscal responsibility and make Marriage Equality one of the defining issues of the campaign. That worked for Bush in 2004 when there wasn't majority support. However that would backfire in 2016, costing us (Republicans) the White House, preventing the very thing that is hoped for.
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Then there are the legal questions as a result of such a decision by the Court on some hypothetical case that would be heard after a Republican President shifts the balance of the court from 4 Liberal - 1 Moderate - 4 Conservative to possibly 3 Liberal - 1 Moderate - 5 Conservative. Considering that the new President wouldn't nominate a new Justice until at least January of 2017 with confirmation that spring that means this hypothetical conservative court wouldn't be hearing a case until the October 2017 term with a ruling probably in the spring of 2018 (or even at the end of the term - June 2018). **IF** there were a case in the pipeline from the Summer. Barring that it could be the 2018 or 2019 before a case reaches the court, meaning that some states (not those who have SSCM through legislative or ballot initiatives) will have had SSCM for up to 5-years (Using Prop 8 as a time reference).
1. How would the court deal with the 10's or even 100's of thousands of same-sex couples that were legally married during that time that it was legal?
2. Since the original Constitutional bans were found in the final ruling on the matter to have been unconstitutional what would be the status of those states? Would the old bans be back in place and new SSCM's simply halted (Question #1 addresses already married couples) permanently? Would new SSCM's be halted, via a "stay" type of action pending further action to by the State to either re-implement a new ban or allow SSCM to continue? Would new SSCM's be allowed to continue, via a "stay" type of action pending further action to by the State to either re-implement a new ban or allow SSCM to continue?
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