Breaking: Supreme Court to hear challenges to Proposition 8, DOMA

posted at 4:29 pm on December 7, 2012 by Allahpundit

I’m surprised. I said a few weeks ago that I thought neither wing of the Court had an incentive to grant cert on gay-marriage cases right now. The conservative wing should be worried that Kennedy, who’s written two landmark opinions supporting gay rights, will vote with the liberals. The liberal wing should be worried that a Court ruling imposing gay marriage nationwide will generate a ferocious backlash just at the moment that SSM supporters are starting to win state referendums.

It only takes four votes to grant cert. Which side decided to roll the dice?

The new California [Proposition 8] case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages…

Judge Stephen R. Reinhardt, writing for the [Ninth Circuit] majority [that struck down Proposition 8], relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote…

“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”

The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place unless voters there choose to revisit the question. It could affirm on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

My hunch is that it was the conservatives who voted to take both cases, not the liberals. The liberals have no real incentive to touch this right now. They were just granted four more years to hope for a conservative vacancy on the Court, at which point gay marriage by judicial fiat will be a fait accompli. The more states enact gay marriage in the meantime, the stronger their political position will be when that moment finally arrives. And Kennedy, while likely to vote with them, is always a wild card. Why take a chance on him now and risk an unfavorable precedent when they can simply punt? They’ve got time; they can wait. For the conservatives, the logic runs the opposite way. As skittish as they are about Kennedy, they’re better off forcing this issue and gambling on him than waiting for a fifth liberal justice to be appointed by Obama. Ruling against gay marriage now won’t stop a liberal Court from overruling the decision later, but it will help delegitimize the future ruling by underscoring how nakedly ideological the Court’s changing thinking is. The conservatives may also figure that accepting this now along with DOMA may incline Kennedy to issue a split decision. Striking down either DOMA or Prop 8 would be huge, but striking down both on the same day would be epochal, maybe too much so to make a moderate like him comfortable. It could box him in on federalism too. If he’s inclined to strike down DOMA in the name of letting states set the rules on family law, then why can’t Californians set their own rules with Prop 8?

The only reason I can think of why the liberals might want to hear this case is because they think it’s important to have justices from both wings of the Court in the majority for a ruling as controversial as finding an equal protection right to gay marriage. But like I say, even with Kennedy’s record on gay rights, that’s a serious gamble. And how would having a bipartisan Court majority help sell this decision to the public if the only bipartisan element is Kennedy? A majority with Scalia, Alito, or Thomas in it would be dramatic. A majority with four liberals plus the guy who’s voted with liberals repeatedly on gay rights would be meh.

Update: Split decision on DOMA?

Court watchers I’ve corresponded with believe that the likeliest outcome, given the justices’ individual histories on similar questions, would be a decision that strikes down the federal recognition prong of DOMA while also ruling there is no constitutional right to get married. This result would mean that married gay couples would be eligible for federal benefits but that gays could only get married in states where such unions were legal.


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northdallasthirty is gay? Oh how sad.

libfreeordie on December 9, 2012 at 9:43 AM

I love how liberals firmly believe that gender differences are purely a result of your upbringing, and can be fixed with a sex change operation, while simultaneously believing that sexual orientation is inborn and immutable, and you literally have no choice in the matter.

Being male is inborn. Being female is inborn. Being homosexual is not.

There Goes The Neighborhood on December 8, 2012 at 5:15 PM

.
Yeppers liberal illogic:

Genders is fluid and changable.

Sexuality is genetic and static..

melle1228 on December 8, 2012 at 5:33 PM

.
That is about the most eloquent combination of words, defining the liberal mindset on gender and homosexuality, I’ve heard or read.
Kudos to both of you.

listens2glenn on December 9, 2012 at 10:04 AM

northdallasthirty is gay? Oh how sad.

libfreeordie on December 9, 2012 at 9:43 AM

.
Crocodile tears?

listens2glenn on December 9, 2012 at 10:06 AM

Oh, more AllahPundit ” bombshell” gay fakery op pieces?….ZZZZZzzzzzzzZZZZZZzzzzzzz….This isn’t news but at least 700+ idiots fell for your moronic headline.

This clearly demonstartes the character of you and the current crop of wierd~o’s.

DevilsPrinciple on December 9, 2012 at 10:06 AM

Oh, more AllahPundit ” bombshell” gay fakery op pieces?….ZZZZZzzzzzzzZZZZZZzzzzzzz….This isn’t news but at least 700+ idiots fell for your moronic headline.

This clearly demonstartes the character of you and the current crop of wierd~o’s.

DevilsPrinciple on December 9, 2012 at 10:06 AM

.
Wasn’t he/she great everyone? … Give him/her a hand !

(insert the sound of one hand, clapping)

listens2glenn on December 9, 2012 at 10:28 AM

I will no longer post on this board. It is absolutely pointless. Good-bye HotAir.

SC.Charlie on December 8, 2012 at 10:08 PM

Do what I do in these teh ghey threads…state your case, defend your position, and try and answer a question/point or two. Only get in more lengthy convos with those who are at least intellectually honest, and ignore the trash. It’s not easy, and I still fall into a flame war or two now and then, but avoiding them will keep you sane…and you can only shake and thump a dull flashlight for so long until there’s no light left.

JB

JetBoy on December 9, 2012 at 9:15 AM

+100 Jet!

SC Chalie..I know how you feel..been there.
I find it pointless..why I usually stay off these threads.
Because of you..I stayed for an exchange..so it wasn’t pointless. :)
But take Jet Boy’s advice. As I observed over the years- He has the patience to
to defend his position and stay calm even when the flame
wars start. I am not for GM- he is but I respect his honesty and maturity on these matters.
If you feel it pointless, as I usually do
don’t waste your precocious time or let some anonymous
azzhole get to you. If you noticed, many good posters(I respect) also stay off these threads. In the grand scheme of things-
doesn’t matter. It doesn’t even phase me now.
But I am glad I caught you yesterday.

Keep your chin up.

KOOLAID- :) Your my triple KOOL to the cool.

bazil9 on December 9, 2012 at 10:35 AM

northdallasthirty is gay? Oh how sad.

libfreeordie on December 9, 2012 at 9:43 AM

And your an educator.. Oh how sad..

melle1228 on December 9, 2012 at 11:30 AM

believe that the likeliest outcome, given the justices’ individual histories on similar questions, would be a decision that strikes down the federal recognition prong of DOMA while also ruling there is no constitutional right to get married.

As it SHOULD be!

HondaV65 on December 9, 2012 at 1:24 PM

I wonder if the conservative Justices might want to the liberals and Stephens to give gay rights complete victory. This would kill the GOP’s albatross of opposition to the normalization of gay people. It would be very clever.

thuja on December 9, 2012 at 1:38 PM

It doesn’t matter. This country is in the process of committing suicide whether it be now or later. Might as well hit bottom sooner and begin the slow climb out of the sewer.

artman1746 on December 9, 2012 at 3:36 PM

Do what I do in these teh ghey threads…state your case, defend your position, and try and answer a question/point or two. Only get in more lengthy convos with those who are at least intellectually honest, and ignore the trash.

JetBoy on December 9, 2012 at 9:15 AM

JetBoy, this is what many of us have appreciated about you over the years: your level-headed good sense along with your patience.

It actually is good advice for everyone at all times, not just for when posting on the “ghey threads.”

Burke on December 9, 2012 at 4:34 PM

bazil9 on December 9, 2012 at 10:35 AM

Burke on December 9, 2012 at 4:34 PM

Cheers…Much thanks!

JetBoy on December 9, 2012 at 6:52 PM

The reason I left the presidential section of my ballot blank in November was Romney’s decision to hire Ted Olson to coach Paul Ryan. Not that my vote mattered in California anyway, but to me that was a red line. We probably are better off with a liberal president who will kill the US economy than with a RINO who would have sold us out.

p_incorrect on December 9, 2012 at 7:57 PM

…not even the extremely sexually prolific Greeks had ghey marriage.

Nutstuyu on December 8, 2012 at 4:44 PM

Man-man and man-boy love was so thoroughly ingrained in the culture that marriage was considered the lesser institution reserved for mere procreation/inheritance and only done with those lesser beings known as women.

You didn’t need to marry your male lovers, they were just available at every Symposium. Read Plato. Gay male sex with all ages was the norm in Greek culture where women were the despised inferiors. Pederasty was so commonplace it was unremarkable.

Only the Judeo-Christian ethos changed that pagan polymorphous perversity [as Freud called it].

profitsbeard on December 9, 2012 at 8:17 PM

For anyone who doesn’t believe this isn’t being driven by an anti-religion fervor…

Just read the last lines.

budfox on December 9, 2012 at 8:57 PM

You didn’t need to marry your male lovers, they were just available at every Symposium. Read Plato. Gay male sex with all ages was the norm in Greek culture where women were the despised inferiors.

Only the Judeo-Christian ethos changed that pagan polymorphous perversity [as Freud called it].

profitsbeard on December 9, 2012 at 8:17 PM

Fancy that. Women were despised inferiors until us evil fundies came along with our ‘Christian Sharia’ and wrested the cultural norms away from the buttsex brigade.

And for this (among many similar examples) we get vilified by every liberal spinster who doesn’t like being told that she is, in fact, a slut…and not an ‘enlightened modern womyn’. Or whatever euphemistic bullcr@p phrase is currently in vogue.

MelonCollie on December 9, 2012 at 11:48 PM

northdallasthirty is gay? Oh how sad.

libfreeordie on December 9, 2012 at 9:43 AM

Morehouse

Bmore on December 10, 2012 at 1:07 AM

I wouldn’t count on the Roberts Court to produce any decision which is originalist in nature or grounded in foundational constitutional principles.

Haven’t we learned that already?

Roberts has proved he is incapable of holding together any decision which adheres to the actual constitutional role of the court. The majority will simply invent something out of thin air- as Roberts did with PPACA.

This is one reason why the Founders made the SCOTUS role almost zero and we will once again rue Marbury vs. Madison.

For years this unelected branch of government has been nothing but a mouthpiece for some of the most destructive policies government has ever produced.

To save our country we need real leadership. And it won’t come from the SCOTUS.

Marcus Traianus on December 10, 2012 at 8:30 AM

JetBoy on December 9, 2012 at 9:15 AM

.
You write this, and yet you’ve never been intellectually honest about your opposition to True Marriage Equality, JetBoy.

blink on December 10, 2012 at 11:44 AM

.
Same-sex “marriages” can’t reproduce. By definition, that by itself makes same-sex “marriage” axiomatically unequal to heterosexual marriage.

Marriage isn’t about sexual pleasure, and gratification. Nor is it about sharing a medical plan.

It’s about recognizing and promoting the “nuclear-family” as the ideal for having a strong society.

listens2glenn on December 10, 2012 at 3:51 PM

Same-sex “marriages” can’t reproduce. By definition, that by itself makes same-sex “marriage” axiomatically unequal to heterosexual marriage.

I think that those who keep insisting on using semantics to equate gay marriage to normal marriage are, in addition to using one of the oldest bullshit tricks in the books, getting themselves into a logical contradiction. For two things to be considered the same, they have to share all properties (that’s a necessary but not sufficient condition). In the case of gay marriage, the fact that the union is not capable of reproduction should be a no-brainer for anybody. For those still unconvinced, consider the case of incestuous marriages. I am not even talking about first degree marriages (parents/children or siblings) but cousins. Restrictions for marriage between first degree cousins exist in some states but do not exist on others. In particular, in Washington state, two first cousins cannot legally marry. If we accept that gay marriage == normal marriage, you have to leave the restriction for first cousin gay marriage. However, since the rationale for banning first cousin normal marriages isn’t there for first cousin gay marriage, common sense dictates that first cousin gay marriage should be permitted but if you permit that, you are implicitly admitting that gay marriage and normal marriage are two different beasts, so a constitutional right to normal marriage doesn’t imply a constitutional right to gay marriage, just as a constitutional right to normal marriage doesn’t imply a constitutional right to incestuous normal marriages.

p_incorrect on December 10, 2012 at 4:42 PM

listens2glenn on December 10, 2012 at 3:51 PM

.
The word nucleus (the root of the word – nuclear) simply implies the inner (tight) family. There’s no reason why a nuclear family needs to have offspring.

blink on December 10, 2012 at 4:17 PM

.
But there is a reason why our previous elected government “servants” (but don’t try telling any of them today, that they’re our servants) chose to officially condone and recognize heterosexual marriage, and allow parents tax-deductions on their children.

listens2glenn on December 10, 2012 at 5:52 PM

p_incorrect on December 10, 2012 at 4:42 PM

.
Wow, that was rather eloquently explained. +++++

We could also include bestiality in that mix.

You just know that someone, somewhere wants an officially recognized and condoned marriage to a “non-human”.

listens2glenn on December 10, 2012 at 6:01 PM

You just know that someone, somewhere wants an officially recognized and condoned marriage to a “non-human”.

listens2glenn on December 10, 2012 at 6:01 PM

The far east… I think they already have them…

astonerii on December 10, 2012 at 7:28 PM

listens2glenn on December 10, 2012 at 6:01 PM

.
The far east… I think they already have them…

astonerii on December 10, 2012 at 7:28 PM

.
Wow, my retroactive prophecies are batting 1.000. : )

listens2glenn on December 10, 2012 at 7:43 PM

Wow, my retroactive prophecies are batting 1.000. : )

listens2glenn on December 10, 2012 at 7:43 PM

Man marries body pillow girlfriend in Korea – Boing Boing

yup, here it is. I also think someone married their character online…

Japanese man ‘marries’ computer game character – Telegraph

Yup, there is that one.

Of course, saying these are marriages is bordering on insane. I wonder what a pillow would do with half and a big alimony check…

astonerii on December 10, 2012 at 7:51 PM

Fancy that. Women were despised inferiors until us evil fundies came along with our ‘Christian Sharia’ and wrested the cultural norms away from the buttsex brigade.

And then women were told to cover their heads and shut up at church. Paul wasn’t a woman-hater, but he wasn’t exactly an egalitarian, either.

TMOverbeck on December 11, 2012 at 10:03 AM

Hey AP – Where’s my Headline

HA Commentator Predicts Gay Marriage Push is about beating science, and is proven right in under a year

http://www.usnews.com/news/articles/2012/12/11/scientists-may-have-finally-unlocked-puzzle-of-why-people-are-gay

This is the first logical answer I’ve seen in some time.

Total double-edged sword.

It acknowledges homosexuality as a biological trait, which will open up federal minority status for certain issues, and close them off for some others.

Parents of LGB offspring can be screened to see if their child is congenital, or not. That’s going to make an interesting splinter in the debate.

And then we’re going to have future parents who are going to be able to screen for this in a very short time…while someone will try and do the opposite, providing a way for gay couples via surrogate to pass the trait on. The trait possession in gay couples seems uncertain, though.

Brave New World, baby.

budfox on December 11, 2012 at 10:01 PM

The court will probably rule on some side-issue, leaving the main question to fester for further challenge. This is the level of clarity we have come to expect.

virgo on December 12, 2012 at 1:12 AM

And then women were told to cover their heads and shut up at church.

TMOverbeck on December 11, 2012 at 10:03 AM

For a short time, until we figured out that Puritanism was no way to run a nation. And you were still treated orders of magnitude better than anywhere else in the world, so quit whining.

MelonCollie on January 13, 2013 at 8:22 PM

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