How will SCOTUS rule on Prop 8 and DOMA?

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Time for some guesstimation.

Chances are that the Supreme Court of The United States of America will rule on both California Proposition 8 and Defense of Marriage Act in the coming week.

A recap:

Defense of Marriage Act (DOMA)

Section 1. Short title.
This Act may be cited as the ``Defense of Marriage Act''.

Section 2. Powers reserved to the states.
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Current status
DOMA has been declared unconstitutional in several cases in lower federal courts (in violation of the Equal Protection clause in the 5th Amendment - Which is used to apply the 14th Amendment to the Federal Government since Bolling v. Sharpe).

California Proposition 8 (Prop 8)

Section I. Title.
This measure shall be known and may be cited as the "California Marriage Protection Act."

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Current status
Prop 8 has been declared unconstitutional by a lower federal court in Hollingsworth v. Perry (in violation of the Due Process and Equal Protection clauses of the 14th Amendment).

Both cases are now before SCOTUS.

A major difference between the two, however, is that Prop 8 is a state law and DOMA is a federal law.

So, what's your guess? Will DOMA and Prop 8 be declared unconstitutional (fall) or not (stand) by SCOTUS?

Last edited by GGPViper on 23 Jun 2013, 3:24 pm, edited 1 time in total.

No idea but I heard people say that they expect a 'non-ruling' of sorts.

I expect at least one of the cases will be "kicked back" without a definitive ruling, slightly more likely the Prop 8 case, which I understand has procedural issues.

As for a decision....there's no realistic way to predict a vote or decision split on this issue. I stopped predicting these things some time ago.

The smartest thing the court can do is rule it is a "states' rights" issue and do nothing. If Prop 8 was duly added to the CA constitution, the CA courts CAN NOT call it "unconstitutional."

Leaving aside the issue of your interpretation of the Supremacy clause, I don't think the court had 4 votes to grant cert if they didn't at least think they had a litigable issue or controversy.

Other...

I think DOMA will go down, but Prop 8 might stand or a ruling might only apply to California.

In oral arguments the Justices seemed to believe that the supporters of Prop 8 didn't have standing to sue, as the state of California is no longer defending the law.

DOMA seems like it will be ruled unconstitutional, but Prop 8 would be an issue of "states rights" I imagine. Both decisions will be close, but I imagine a 5-4 or 6-3 ruling on both.

I would have thought California would be in favour of gay marriage.

To me, Prop. 8 looks worse than DOMA because it is an outright ban, whereas DOMA is basically "states don't have to recognise the gay marriages of other states", plus an attempt to re-define marriage.

Not so.

Cert means they want to hear the matter...not that they believe they can solve the matter. When it gets to written and oral arguments, then they can decide how the arguments stack up against what the Constitution permits and decide accordingly.

Likewise, denying cert does not mean there is no relevant issue for the Court to hear. It may simply be it didn't make the cut of cases they chose to hear.

That's a fine difference. How many times do they DIG a term?

I'm not sure what you are asking. I know the court only hears X cases a term. In large part, if a case asking for cert clearly is not a federal matter, it may be rejected, but all that is needed for cert to be granted is for enough justices to be INTERESTED in hearing the case to see if there is a federal law issue to be addressed.

Lots of valid federal cases are rejected because the court is not interested. The more unique the case, the better the odds of the court showing an interest...even if the legal issue is much lower than other more mundane federal cases applying for cert.

I was originally referring to your "smartest thing" quote, which got lost in the reply chain. In the "Prop 8" case, at least 4 justices already voted to hear the case, so "doing nothing" would require them to "dismiss as improvidently granted" (DIG), which would presumably send it back to the 9th Circuit. They may do that on standing grounds, but that's going to be rather confusing. A plurality opinion is also a distinct possibility.

In any event, yes the court grants cert when they want to. They can hear or not hear any case brought before them (Federal or direct appeals from state courts) that they want (except cases in original jurisdiction and mandatory review, which are fairly rare outside of redistricting). In the cases that we're discussing, they already took the cases, and had oral arguments.

Oh, well... SCOTUS didn't rule on DOMA and Prop 8 today... (they did rule on Affirmative Action, but that's a different subject).

They'll be back tomorrow at 10 AM, though.

Ah.

The 10th Amendment expressly states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There is not one word in the U.S. Constitution regarding marriage. The whole concept of the Loving case was denying INTERRACIAL marriage between a man and a woman. As marriage (traditional) was a norm in society, the court found the law prohibiting interracial marriage in violation of the 14th Amendment which in relevant part states, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As interracial marriage happened all the time in human history, this was an easy extension of rights to justify using existing law.

The freedom to marry is seen as a civil right, but such rights were only constructed in terms and understanding of TRADITIONAL marriage. To this day, marrying a minor is legally prohibited unless that minor is over a given age and has parental consent to marry. To this day, marriage with multiple partners (polygamy) or another spouse (bigamy) is legally prohibited. To this day, you can not marry a non-human life form (e.g., animal) regardless of how intelligent you can demonstrate it to be. More so, STATE LAWS (not federal) determine what the rules are for marriage in any given state.

So, the concept of same-sex marriage runs contrary to what "marriage" is understood to be (between two people of opposing gender) at the time the U.S. Constitution and all subsequent amendments to date were crafted.

Okay, some states want to allow same sex marriage. As a "states rights" matter, they can do that, but they can't force other states to accept the legal validity of the choice of that state. You could argue the full faith and credit clause of the Constitution, but that fails on the basis that many states DO NOT recognize the standards other states on many issues. Concealed carry gun permits are an excellent example of this. No one state has full reciprocity with the other 49 states, and the 2nd Amendment speaks more clearly to the right to carry a gun than anything speaks to the alleged right to marry.

This is the basis for DOMA. A federal law saying you can't use the federal government to impose a marriage legal in one state upon a state that does not recognize it as legal. We could go down a rabbit hole on this issue as many states DID NOT create same sex marriage by public referendum but rather by either an activist court creating the right out of thin air or a legislature voting in favor of it in spite of what the population wanted. So, let's not go of on that tangent.

The Prop 8 issue is that California had gay marriage created by judicial fiat. There was a law passed, and the court said the law violated the state constitution. Then Prop 8 changes the state constitution to prohibit same sex marriage. The state court wants to reject it as "unconstitutional" but it can't do it on the state constitution, so the claim is that it violates the US Constitution.

SO, this whole debate revolves around the issue of WHO gets to decide what is the definition of "marriage" in the USA.

Up to now, it has been the exclusive providence of the STATES and the PEOPLE to make that decision. The push is to get the federal government to make that decision.

Who are NINE PEOPLE to decide what is the law of the land for MILLIONS of people? What does the US Constitution say? What is the proper channel for the federal government to define "marriage" for the entire nation.

I know the answers. The US Constitution is SILENT. The proper way to change the fundamental definition of "marriage" for an entire nation is by a constitutional amendment (even a law by Congress isn't enough...you need a proposed amendment and proper ratification by member states). If society has indeed changed to the point that same-sex marriage is the new norm, then such a move would pass, but the reason why activists want rulings by courts or laws pushed through the political process (and not subject to voter approval) is because it is easier to pressure a few to give them what they want rather than properly change the rules of society.

So, if the Supreme Court rules DOMA as unconstitutional, they are going to have issues with states suing for the right to refuse recognition of marriages (in this case, same-sex) not performed within their border and in compliance with their local laws.

If the Supreme Court rules against Prop 8, it is creating, from nothing, a right of marriage at the federal level contrary to the proscribed way of creating new Constitutional rights.

Either of these will require some very complicated legal wrangling to justify them. I don't even see an Obamacare ruling where they say, "You can't punish people for not buying health insurance but you can tax them for not having it."

The simplest way to address both matters is to evaluate the arguments presented and show how the federal government DOES NOT have the place to make a ruling on either issue. The court can call both issues matters that fall to the states to resolve UNLESS a constitutional amendment is created and passed making same-sex marriage a RIGHT guaranteed under the US Constitution. In doing so, the Supreme Court is upholding and applying the 10th Amendment in answering the issues before it.

If the court somehow justifies same-sex marriage as a "right" conferred in an unwritten manner under the existing US Constitution and amendments, then you will have to legalize bigamy, polygamy, marriage to minors without consent, etc. because ALL OF THESE are prohibited based on sociological norms that say they can not be permitted. Marrying a girl/boy barely old enough to produce kids was once the norm in human history. Having multiple spouses has often been the norm in human history (and is indeed still legal in some cultures). If legal same-sex marriage ever existed in history, it was very, very rare, and it was clearly legally prohibited as unnatural in American culture from the day of its inception. I see no way to carve such a radical change in marital rights by a court WHICH CAN ONLY RULE ON THE SPECIFIC ISSUE BEFORE IT and maintain legal prohibitions against other undesired marital relationships.

.... And they didn't rule on DOMA and Prop 8 today, either...

... (they did rule on The Voting Rights Act, but that's also different subject).

EDIT: They will reconvene tomorrow at 10 AM for the final 3 rulings.