California Prop. 8 and DoMA have found their way before the Supreme Court of the United States. Seems like they'd rather avoid making a ruling altogether at the moment.

I've been gleaming bits and pieces of comments from the justices, but I am not entirely certain how they fit together yet. Some of the random quotes in the news are head scratchers. 

But [Justice Kennedy] also said he feared the court would enter "uncharted waters".

"We have five years of information to pose against 2,000 years of history or more," he said.

There is just too much wrong with that statement.

Personally, I think if a ruling comes, it will just tip in favour of same-sex marriage proponents, though it's a bit tricky. It concerns constitutionality and the impact of state's rights, as well as the direct impacts on Californians and the specific Proposition under review.

So, views? Predictions? Insight?

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I can't offer much in the way of a prediction because I don't really know anything about the individual justices, but I will be incredibly disappointed if they don't use this opportunity to take a stand and finally let our political system do something positive for the country.  It is a long overdue change and if it does not pass I will likely end up on a rant that finally outs me as an atheist to everyone that isn't close to me.  Perhaps that is also overdue, but either way I hope they grow a pair and do the right thing.

I am very nervous about the ramifications of an anti-marriage ruling. I'm not letting myself think about it for very long though because this week is already highly stressful for me due to happenings in my personal life.

I think they will kick it back to the lower court.

I've seen this idea floating around a lot and it would absolutely piss me off.  On such a divisive issue they can't take a back seat approach and just let it play out in a state by state fashion.  It would be like telling the states to set their own segregation laws back in the 50's. 

+1, let's play kick the can on down the road....

You may be right, since they might decide the litigators don't have the standing to be before them. 

Also, I'm a little concerned that some of the justices are deviating from purely legal issues and talking about social issues. The Supreme Court is unique in that it should only be ruling on constitutional matters, not what the effect of their decision might be.

I have a feeling they will throw it out and let the lower courts deal with it

2013 and human beings are still being denied their civil rights.


As is the supreme court.

This is sad, no differenr to they time when in South Africa you could not get married to someone from a different race. Goverment is not the one that has to live and share his life with this person, why should they be allowed to decide this. 

I think the Supremes may punt on both issues before it over the legal technicality of "standing." You see, in both cases the state or federal attorneys who would normally be defending the laws before the court have opted out based on their own (or their administration's) belief that Prop 8 and DoMA are unconstitutional. 

The irony is that their absence, intended to assist in dumping the laws, may allow them to go on. Talk about unintended consequences.

In legalese, "standing" means having the right to argue before the court, which basically comes down to "do you have a dog in this fight?" Here's a less colloquial, more technical definition:

Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the law or action challenged. Otherwise, the court will rule that you "lack standing" to bring the suit and dismiss your case.

There are three constitutional requirements to prove standing:

  1. Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.
  2. Causation: The injury must be reasonably connected to the defendant’s conduct.
  3. Redressability: A favorable court decision must be likely to redress the injury. (source)

Well, in the case of Prop 8 (and I think I was wrong about this in my preceding post), by deciding that those defending it have no standing, the lower court's tossing out of Prop 8 would stand.

The early (and, again, we stress early) analysis of this morning's Supreme Court hearing on Proposition 8 suggests that the justices are more than a little wary about using the case to issue a sweeping ruling on gay rights. One of several possibilities being talked about by court watchers and legal experts is that the high court could decide to pass on ruling on the case all together, either by simply deciding that it's too soon to take up the issue or by finding that the plaintiffs don't have the legal standing they need to challenge the lower court's ruling that struck down the law. So what happens then?

In short, gay marriage would likely become legal again in California, although the door would be left open for another challenge at a later date. (source)

As for DoMA,...

DOMA, too, faces questions of standing because the Obama administration has declined to defend it, leaving it to Republicans in the House to step up. But even if the court strikes the law down, "the Court could write the decision narrowly, opening federal benefits to married gay couples but not broadly addressing the question of marriage as a fundamental right." (source)

I find it interesting that some of the justices' questions surround the idea that legal gay marriage is relatively new, that it's unclear at this point how it affects their children, etc., none of which strike me as constitutional issues. The justices SHOULD be arguing over equal protection under the law, not what the effects of gay marriage on society may be. That's for society to decide.


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