SCOTUS will be ruling on same-sex marriage
I’ve learned that speculation on how SCOTUS will rule is pretty worthless. And yet we’re all tempted to do it.
But this one has me stumped, and I cannot even make a prediction except to say the liberals on the court will rule for it. I’m not sure about swing Justice Kennedy (see this), or Justice Roberts, but I’m pretty sure the others will rule against it.
There are really three main issues with same-sex marriage and they need to be distinguished from each other. The first is: is it a good thing? In other words, would you vote for it if the question of legalizing it came up in your state? This isn’t what the Supreme Court is deciding, but people sometimes get confused about that fact.
The second is: is prohibiting gay marriage unconstitutional? In other words, if a state wanted to ban it, does that violate the Equal Rights clause of Fourteenth Amendment to the Constitution? That is really the main issue before the Supreme Court justices, not what their personal opinions on gay marriage might be.
The third issue is whether the rights of religious people can be protected if SCOTUS establishes a right to gay marriage. Will it be used to persecute religious people who provide services and don’t want to be part of a gay marriage? Freedom of religion is one of the bulwarks of our country, and it has become crystal clear in recent months that it’s being threatened by the forces who want gay marriage to be not only legal, but require that every person in the country must be willing to actively facilitate it.
The constitutional issue is stated here:
…[T]he Supreme Court has made it clear that the guarantee of equal treatment within the equal protection clause does not mean that governments cannot ever treat different people differently. States need not permit children to drive cars, for example, nor must they allow senior citizens to enroll in grammar school. As a basic rule, the Court has said that it is reasonable for states to build categories or classifications into the laws that they pass, and in fact, the “rational basis test” is one of the standards used by the courts to determine whether these classifications are fair. Also known as the Lindsley test, this standard says that if the reasons for treating people differently are reasonable and logically related to the law’s purpose, then they are constitutional. Opponents of gay marriage insist that there is a rational basis (usually, they argue, rooted in cultural or religious tradition) for restricting marriage to a relationship between a man and a woman.
But the Court has also held that certain types of laws need to pass a tougher standard than the Lindsley test; certain types of classifications within the law are more suspicious and require closer scrutiny. In particular, the Court has said that America’s history of racial oppression requires that all laws employing racial classifications must be more rigorously examined by the courts. Consequently, it is far less likely that these sorts of laws will survive judicial scrutiny. On occasion, the Court has also applied this heightened level of scrutiny to state laws using classifications based not only on race but also on citizenship. And in recent decades, the Court has developed an intermediate standard for evaluating laws employing gender classifications. Statutes that treat men and women differently must be more than merely reasonable, they “must serve important governmental objectives,” and the differing treatments of men and women “must be substantially related to achievement of those objectives.”
In terms of gay marriage, the critical issue thus becomes the level of scrutiny that laws affecting gays and lesbians should receive. Are gays, like racial minorities, considered a “suspect” class in terms of constitutional law? Does the court rigorously scrutinize laws impacting them? Or do laws that create classifications based on sexual orientation receive a lesser degree of vigilance, like those based on age? Should the courts then apply the lowest level of scrutiny, the rational basis test? Or do they impose an intermediate standard like the one used to examine laws incorporating gender classifications?
The short answer is that, thus far, gays and lesbians have not been considered a suspect class by the Supreme Court; laws impacting them are today subject only to the lowest level of scrutiny.
My own opinion, for what it’s worth, is that the Fourteenth Amendment does not cover this, and that it should be left up to the states. But the Supreme Court isn’t asking me.
I’m not sure about swing Justice Kennedy
I am. His ruling against the DOMA provided the foundation that the appellate courts have used to strike down many state laws and/or constitutional amendment stating that marriage is ONLY between a man and woman. This in turn has created a large majority of Circuit Courts ruling-essentially- for same sex marriage. Kennedy will now use this majority if court decision to justify legalizing same sex marriage nationwide. It’s essentially circular logic in that Kennedy created the foundation used by courts to strike down same sex marriage bans and will then use those same bans as support for his soon to be majority decision.
I will admit that I have no idea how Roberts will rule, though. Since there will be 5 votes in favor of legalizing same sex marriage, Roberts’ vote is irrelevant.
On the plus side as a political junkie, I eagerly await the arrival of the first polygamy lawsuit at SCOTUS’ desk. It will be entertaining, to say the least.
I would expect the Supremes to come out of the closet: a right to rites.
That such a ruling steps all over religious doctrine —
“What difference does it make?”
physics geek:
The ruling against DOMA rests on a different legal foundation than the questions in the present case.
I just was recruiting at my alma mater and ran into a desk where they wanted signatures on a banner supporting gay marriage. They asked me to sign and I said no. I tried to get some real sense of their motivations. They could lot describe why this was important except to continually refer to “marriage equality”. There has been a total failure of imagination on this. A long term same sex relationship is different from a traditional marriage. To insist on equality is a wish for something that is not there. The civil unions so cluelessly offered in genuine good will did not offer this wished for equality. Neither does a grudging acceptance thus the red guard tactics against florists and bakers
Kagan and Ginsburg should recuse themselves. We’ll see if they have any integrity. I won’t hold my breath. They are leftists.
C’mon, Justice Kennedy. I haven’t given up hope(and prayer)there.
I leaned for legalizing gay marriage until the issue devolved to targeting and severely penalizing businesses for declining to participate. For that reason alone I am now firmly against it.
Scotus will not be ruling on Same sex marriage, since there is no such thing.
How dare they even think they could. It shows how moronic and utterly depraved our so-called high courts and judges have become.
Once they get through with same sex “marriage” maybe they will take the case of whether a man has a right to be a woman, and a woman a man. If so, we can get back to opposite sex marriage and things will be all back in order again.
Then the only thing left to these depraved and degenerate Solons to decide will be, not whether their are unicorns, but whether people are also unicorns and need the protection of the EPA.
Don’t laugh.
Soon there will be a great struggle when the West wakes up and decides to defend itself against the Orks from Morder. It will be every bit as cataclysmic.
“There are really three main issues with same-sex marriage and they need to be distinguished from each other.
The first is: is it a good thing?”
This question lies outside SCOTUS’ purview.
“The second is: is prohibiting gay marriage unconstitutional? In other words, if a state wanted to ban it, does that violate the Equal Rights clause of Fourteenth Amendment to the Constitution? That is really the main issue before the Supreme Court justices”
It is indeed the main issue. If SCOTUS rules that prohibiting gay marriage is unconstitutional because it violates the Equal Rights Clause of the Fourteenth Amendment to the Constitution, then that rationale must logically also apply to prohibiting all forms of plural marriage.
If one man, one woman is not exclusive, then the prohibition against more than two marrying is also arbitrarily discriminatory. In addition, the prohibition against incestuous marriage between consenting adults also collapses because it too is arbitrarily discriminatory.
The ‘slippery slope’ is actualized because it becomes legally inescapable.
“Ability to consent” then becomes the sole objective and non-discriminatory determinant as to whom may marry because ALL other lines of ‘demarcation’ between who may and may not marry are, by SCOTUS’ own ruling… based in arbitrary discrimination.
“The third issue is whether the rights of religious people can be protected if SCOTUS establishes a right to gay marriage. Will it be used to persecute religious people who provide services and don’t want to be part of a gay marriage?”
Religious people who provide services and don’t want to be part of a gay marriage are already being prosecuted based on the argument that prohibiting same-sex marriage is a violation of the 14th amendment. If SCOTUS now formally rules that prohibiting gay marriage is unconstitutional because it violates the Equal Rights clause of Fourteenth Amendment to the Constitution then a business service offered to the public cannot discriminate. Forced participation then becomes unavoidable without logical contradiction.
Arguably, even churches would be forced to participate. Churches could try to limit marriage services to members of their particular faith but for instance, two gay Catholics who demanded to be ‘married’ in a church service that the Catholic Church denied could then bring suit against the Church for unlawful discrimination.
And… they will do so because except for the idealistically obtuse and naive, same-sex marriage is NOT about ‘equality’. It is about societal acceptance and the societal embrace of ‘alternative’ sexual ‘orientations’. Children in the public schools have and are being indoctrinated into that acceptance and in but another generation that acceptance will be the overwhelming norm.
But for the Left, support for same-sex marriage is about attacking America’s societal consensus.
“Destroy the family, you destroy the country.” Vladimir Lenin
The surest and simplest means of destroying the family is to destroy the societal institutions that support it.
I agree with your (short account) reasoning, but I think “physics geek” is correct. Whatever the legal foundation of Windsor, in the majority opinion, Kenedy announced his thinking. All the majority has to do is insert Lawrence v Texas rationale, ergo, same-sexed marriage is constitutional.
Paul over at Powerline, together with Charlie Rose guests tonight (David Boies and a NYTimes reporter) agree – and agree that this is the legacy direction Justice Kennedy wants to go. (And that deeper rationale of Kennedy’s motivation is even more disturbing for the future – we may well be thrust into the ‘living Constitution’ territory, folks!)
Even with a lower rational basis test, the problem opponents have is showing any harm. Direct harm is impossible to demonstrate. And while indirect and wide-spread potential for harm is possible to conjecture, too few find such considerations influential – much less persuasive.
My distrust on this whole question lies in the fact that gays hoped to get marriage from religions. They failed – Great religions are founded on intergenerational needs and connections. The gay lifestyle inherently abjures this metaphysical fact.
Thus, snubbed, the Leftists among gays then made secular legal recognition of same-sexed marriage their goal.
But somehow all this is predicated on biological necessity, the Gay’s can’t help it! – yet I can’t be sexist and objectifying of females because of my straight male biology! Can I? No, not without being shamed, drawn-and quartered or something.
This tribal post-Constitutional future is beginning to bore me and lose all my interest. The America I love is in the past and has no future anymore.
Intellectual confusion of the times has allowed sloppy thinking to tip public opinion in favor of sidereal issues, instead of the main ones. I’m just gonna go along for the ride. And keep my mouth shut.
“DIVERSITY THROUGH CONFORMITY”
Geoffrey:
The Church cannot “marry” two individuals of the same sex, EVEN IF she takes them through some farce of a ritual. Such a “marriage” would not be sacramentally valid and all parties to it, the priest included, would be in violation of the Canon Law.
The very definition of marriage (Can. 1055) has the formulations “vir et mulier” (a man and a woman; repeated then in Can. 1057 when it talks of consent) and “ad prolis generationem” (to the procreation of offspring).
Further, Can. 1069 establishes a duty to reveal any known impediments to a marriage – a duty that befalls *every single* individual, who therefore cannot assist a “marriage” between two practising homosexuals whose union by definition is not open to life (Can. 1084 also implicitly excludes homosexuals, and it is a *diriment* impediment to marriage).
Not to mention that sexual acts outside of a valid marriage constitute a mortal sin, and in case of practicing homosexuals all three conditions layed out in the Catechism are met. That alone is inconsistent with the idea of homosexual “marriage”. The Church CANNOT, even if she wanted, santify such a union.
I see no reason why two homosexuals would wish a Catholic “marriage” if not out of pure spite. They would have no case with any legitimate Church authorities.
As far as a *civil* marital contract is concerned, I am not sure I see it as discriminatory. Anyone, *in principle*, can contract a marriage, but the form of the contract requires that the two parties be of the different sex. It is not that homosexuals are discriminated against *as individuals* – every single one of them, individually, is free to contract marriage – it is that what they wish to contract is not marriage. In abstract, the institution of marriage is open to them as individuals, they just do not WANT to enter it.
But, why the semantic confusion and the insistence that we call OTHER unions “marriage”? Could the homosexuals not regulate their partnership without attempting, essentially, an anthropological revolution? To my knowledge, this is the first time in history that a union without the abstract procreational potential (whether or not *practically realized* in a particular case) wishes to elevate itself to be *legally identical* to the miniature human society of family, pretending not only equal legal benefits, but also the very TITLE, as well as access to children it could not logically generate.
Anna,
I entirely agree with and am aware of the Church’s doctrinal inability to marry two people of the same-sex. But that is irrelevant to the purpose of advocates of same-sex ‘marriage’, which is to remove the societal barriers to full acceptance of homosexuality and ‘alternative lifestyles’. ‘Full acceptance’ means societal embrace and approval. The Church will be made to comply or to refrain from marrying people.
“NYT Writer: Christians ‘Must Be Made’ to Embrace Gay Lifestyle”
“Ana Marie Cox: You Have to Force People to Do Things They Don’t Want To”
A *civil* marital contract is NOT discriminatory but it is much less effective at forcing the societal embrace, acceptance and approval of the LGBT agenda. Which is why it is unsatisfactory. The push for same-sex marriage is a political tactic whose goal is not equality but societal approval, acceptance and society’s embrace of homosexuality and any other deviation from the norm. It is the removal of societal disapproval that they seek.
Almost certainly a ruling for pro-choice or selective principles observed in a penumbra on the fringe of society. The “equality”, “no labels”, etc. movements are advocates for selective exclusion, rather than principled tolerance.
I think the justices will, unfortunately, allow same sex marriage to happen.
However, I think I disagree that the Equal Rights clause is invoked here. Marriage is defined as being between a man and a woman. If two women want to get married and they can’t, it is not discrimination b/c it is a not ‘a man and a woman’ entering into the marriage agreement.
Also, I wish someone in front of the court would bring up the problems with opening the door to marriages between brothers and sisters, mothers and sons, etc. If the standard is ‘love’ and nothing else, then all laws concerning ANY kind of restriction to marriage would have to be tossed as well, wouldn’t they?
There will be plenty of people who will ‘marry’ elderly mom or dad so they can easily acquire an estate after mom or dad dies. What about taking advantage of social security benefits as a ‘spouse’ of mom or dad? And any number of other horrible schemes people will come up with.
You cannot restrict one kind of marriage between men and women and allow for ‘gay’ marriage. That’s how I see it, anyway.
K-E:
Equal Rights and the 14th Amendment would be invoked not under the heading of discrimination on the basis of gender, but on the basis of sexual orientation. Pay particular attention to this part of the quote I quoted in the post:
K-E: Your argument doesn’t make sense. While people like to say that the definition of marriage is between “one man and one woman” and that therefore making it between “two people” would fundamentally change the nature of marriage, the fact is that our society did not, historically, simply define marriage as between “one man and one woman.” Rather, the definition was something more like “between one man and one woman of sound mind and age of majority, and who are of non-immediate relation.” The definition included, at various points in time, “of the same religion” and “of the same race.”
Allowing gay men or women to get married to one another no more threatens the protections against consanguineous marriage or child marriage than did allowing mixed-race marriages.
Anna and Geoffrey: As for forcing churches to perform gay marriages, I think that anyone who believes that is going to happen is hysterical. As far as I know, clergy can refuse to marry even a heterosexual couple for any number of theological reasons. It is not the government’s place to decide whether the Catholic Church should or should not marry gays–but it is the government’s place to decide whether those gay marriages that are performed (and some religious denominations do perform them, including but not limited to Presbyterians, Quakers, some Episcopalians, some Lutherans, and Reform and Conservative Jews) ought to be recognized as legal marriages by the government.
does the issue of 3% of Americans, and whatever part of that 3% actually decide to marry, rise to the level of forcing a much larger segment of our society to abandon its religious right of conscience?
the left does not want to answer this…
The idea of this country was that the people make laws — not the courts. If you had told the authors of the XIV Amendment that it meant a man could marry a man, or a woman a woman, there would be no XIVth Amendment today.
Thus, we see clearly that legalizing single-sex marriage will change the law, and in a democratic society, it is the people who are the only ones to have the right to change laws, — in a republic, through their elected representatives.
Further, marriage is strictly a matter for the states to determine — since the Constituion says nothing about it, it is outside federal purview (so are healthcare, farm subsidies, and the National Tea-Tasting Board, but that’s a whole ‘nother story.)
The Utah War of 1853 is instructive (I wonder if it was mentioned in the briefs or oral argument?)
The United States fought a war to ensure that marriage was between one man and one woman. After the victory, what did Congress do? Pass a federal law providing that polygamy was illgal? No, because it did not have the power to regulate marriage. What it did was to require Utah and the other western states to prohibit polygamy in their constitutions as a condition of being admitted to the Union.
The Constitution also requires (Article IV. Section 4) the United States to guarantee to each state a republican form of government — how does a court’s overruling laws enacted by the legisdture or by referendum stand against that requirement.
The decision in this case will indicate once and for all whether we still have a republic or are an oligarchy — and I think it’s pretty clear that we have an oligarchy. In fact, right now, a monarchy, since Justice Kennedy pretty much determines what the law is.
“As for forcing churches to perform gay marriages, I think that anyone who believes that is going to happen is hysterical.”
What about forcing bakers to bake a cake for homosexuals or forcing photographers to take pictures at the wedding?
Churches are the next step. If your church allows non-member to use the church (for a fee) for a wedding, get ready for the gays to come a-suing. If your pastor marries people (for a fee) outside of the congregation who aren’t members of xyz faith, get ready for the gays to come a-suing. Then they will target that church’s tax exempt status.
Trust me. They are already thinking about it.
Just look to the U.K. and see what is happening there. Never say never.
http://www.gaystarnews.com/article/gay-dads-sue-church-right-religious-wedding020813
https://www.lifesitenews.com/news/i-am-still-not-getting-what-i-want-gay-couple-suing-church-for-refusing-wed
Ray and K-E: there is a prima facie difference between a church and a business. Churches can right now legally refuse to marry a couple for basically any reason. I see no reason why this would change once gay marriage is allowed nationwide.
Bryan, well articulated.
Particularly agree with your summary:
It is not the government’s place to decide whether the Catholic Church should or should not marry gays—but it is the government’s place to decide whether those gay marriages that are performed …. ought to be recognized as legal marriages by the government
I personally have no issue with gay people who want to get married, and enjoy the same legal rights that marriage confers to straight people. Anecdotally, all my friends who are gay get up in the morning and slog through the workday just like me – every argument that characterizes them as wild-eyed societal change deviants seems out-of-touch with reality. At least the reality that I experience with my friends.
The only troubling part of the whole argument is the point that commenter Richard Saunders explained regarding the Court versus the laws enacted by the people via their legislature. (how does a court’s overruling laws enacted by the legisdture or by referendum stand against that requirement.) That is indeed a challenging question and I’m sure someone with more historical and legal background can put forward an argument about it.
Anna and Geoffrey: As for forcing churches to perform gay marriages, I think that anyone who believes that is going to happen is hysterical. As far as I know, clergy can refuse to marry even a heterosexual couple for any number of theological reasons. It is not the government’s place to decide whether the Catholic Church should or should not marry gays—but it is the government’s place to decide whether those gay marriages that are performed (and some religious denominations do perform them, including but not limited to Presbyterians, Quakers, some Episcopalians, some Lutherans, and Reform and Conservative Jews) ought to be recognized as legal marriages by the government.
You had better save and remember those words. For the Leftist alliance will make you eat them later on.
Ymarsakar: I stand by my words. Jewelers should brace themselves for an uptick in necklace sales due to the insane number of pearls being clutched around here.
NYer: Wouldn’t this ruling be fairly similar to the effects of Loving v. Virginia, which invalidated as racially discriminatory the laws against interracial marriage in Virginia (and consequently, the rest of the US)? The judicial reasoning may rely on Loving as precedent, or it might not, but if the Court does rule the same-sex marriage bans as discriminatory, then those bans are legally invalid and consequently unenforceable.
While we live in a democracy, the existence of an independent judiciary protects us from mob rule. We live in a liberal democracy, where the majority may not vote away the rights of the minority. Who decides what those rights are? The Constitution does, but in practical terms, it is the judiciary. Is this, in some respect, anti-democratic? Yes. But it is necessary for the functioning of society to have the judiciary protect the rights of all citizens, including minorities, that are guaranteed to us all in the Constitution.