Supreme Court Picks up Same Sex Marriage - Likely Outcome?

Will Same Sex Marriage be supported by the US Supreme Court

Yes
5
42%
Yes
5
42%
No
1
8%
No
1
8%
 
Total votes: 12
Apple
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Apple » Thu Dec 13, 2012 11:41 am

Glaucon wrote:I think it will likely be a favorable outcome for same-sex mariage. The Supreme Court decided to pick the issue up (they get to pick and choose, for some odd reason). And this comes at a time that Republicans feel they are losing the middle ground with their anti gay marriage stance, because public opinion is swinging, moving towards acceptance. Most republicans won't answer questions about gay marriage at the moment. They know their position is no longer that of the majority.

So... why did they pick it up? I think the Supreme Court felt it was time to add a little to their legacy of enabling equal treatment. I assume they voted to pick it up, which likely means Roberts or the other slightly moderate judge probably voted with the liberals... which, I suspect, spells a pro-gay mariage ruling.


I'd say probably, but not necessarily. The Supreme Court gets to "choose" which cases to grant cert to because it would be physically impossible for nine people to properly consider and resolve the thousands of cases that get appealed up. So they are inclined to grant cert to major circuit splits, or important matters of law that need resolution, which usually involve a lot of money, affect a lot of people, or implicate fundamental constitutional rights. That being said, the Supreme Court as a matter of practicality cannot just deny cert for certain issues, like the legality of the ACA last summer, or who won the election in Bush v. Gore. It provides resolution, but also gives the Supreme Court a symbolic way of flexing its muscle.

These cases sort of fall into this last category, given that the validity of a major federal law is on the table. Moreover, there is a circuit split on the issue, fundamental principles are at stake, and every gay person is arguably affected by DOMA's operation. They had to resolve this.

Whether or not that implies that the Supreme Court will uphold or strike down DOMA (nothing is compelling it to make the call on gay marriage in general, btw) is a wash. You are correct in that Supreme Court judges care about their legacy and that perhaps the social and political climate in this country has tipped towards acceptance of gay marriage (though that's certainly arguable, one electoral defeat of Republicans notwithstanding) and the justices are affected by these things. But they can just as easily go the other way.

When Brown v. Board of Education came down, it was imperative for the justices that it be a unanimous opinion in order to avoid Southern backlash. That case (which broadly rebuffed all racial segregation, not just school segregation) might not have happened as it did had Chief Justice Vinson not conveniently died.
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Glaucon » Thu Dec 13, 2012 12:28 pm

Warning: broken up post. :hiding:

Apple wrote:I'd say probably, but not necessarily.


You are right. I am just giving it my best guess.

The Supreme Court gets to "choose" which cases to grant cert to because it would be physically impossible for nine people to properly consider and resolve the thousands of cases that get appealed up. So they are inclined to grant cert to major circuit splits, or important matters of law that need resolution, which usually involve a lot of money, affect a lot of people, or implicate fundamental constitutional rights.


I know. But it seems that there is a great deal of abritrariness about what cases the Supreme Court gets to pick up. Other systems with 'supreme courts' in other countries (whatever they are called there) usually have a more clearly defined (but very complicated/legalistic) way of letting appeals go through or not. This less transparent US system gives the Supreme Court more political power, allows for a greater degree of 'political activism' (not always in a bad way, as I see it).

That being said, the Supreme Court as a matter of practicality cannot just deny cert for certain issues, like the legality of the ACA last summer, or who won the election in Bush v. Gore. It provides resolution, but also gives the Supreme Court a symbolic way of flexing its muscle.

These cases sort of fall into this last category, given that the validity of a major federal law is on the table. Moreover, there is a circuit split on the issue, fundamental principles are at stake, and every gay person is arguably affected by DOMA's operation. They had to resolve this.


I wasn't aware of that. Learned something. :)

Whether or not that implies that the Supreme Court will uphold or strike down DOMA (nothing is compelling it to make the call on gay marriage in general, btw) is a wash. You are correct in that Supreme Court judges care about their legacy and that perhaps the social and political climate in this country has tipped towards acceptance of gay marriage (though that's certainly arguable, one electoral defeat of Republicans notwithstanding) and the justices are affected by these things. But they can just as easily go the other way.

When Brown v. Board of Education came down, it was imperative for the justices that it be a unanimous opinion in order to avoid Southern backlash. That case (which broadly rebuffed all racial segregation, not just school segregation) might not have happened as it did had Chief Justice Vinson not conveniently died.


You may be right. On 'paper', you'd expect a win for the bigots, given that there are 5 republicans/conservative judges vs. 4 more liberal ones. But my guess is that it will still go the other way. Many republicans seem to 'sense' the change on the wind, seem to feel that their position against gay marriage is not longer the electoral 'sure winner' it once was in most of the US and may become a 'sure loser' instead. And since judges are people too, and since a few of less nutty ones of the conservative five appear to me to be the sort that 'keep their ear to the pulse of society' in general, I just think they will be inclined to move towards a positive ruling for gay marriage (whatever the legal arguments are... I tend to think that with complicated matters, the personal preferences/politics of a judge will generally direct the 'technical arguments' they might be using to underpin their decisions).
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Kaitlin » Thu Dec 13, 2012 12:35 pm

Glaucon wrote:I think it will likely be a favorable outcome for same-sex mariage. The Supreme Court decided to pick the issue up (they get to pick and choose, for some odd reason). And this comes at a time that Republicans feel they are losing the middle ground with their anti gay marriage stance, because public opinion is swinging, moving towards acceptance. Most republicans won't answer questions about gay marriage at the moment. They know their position is no longer that of the majority.


Being added to the docket of the Supreme Court says little about the potential success of any case being litigated. I won't deny there is often a certain amount of politics that overshadows the addition but that still leaves you neither for or against the outcome.

As far as republicans suddenly being on board with same sex marriage, apparently you haven't had a look at their party platform or the position of their candidate for president that just got defeated. When do you believe this shift happened? As far as I can tell nothing has changed and I doubt they will sway at all on this issue or abortion despite signs that the country is growing more tolerant in its stance.
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Glaucon » Thu Dec 13, 2012 12:40 pm

I think that shift is happening right now, as part of the whole WTF? WE LOST?-post election soul searching thing and the resulting realisation that they need to consider the demographic realities, the realisation that makes Rubio look like the obvious 2016 GOP candidate.
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Kaitlin » Thu Dec 13, 2012 12:46 pm

Glaucon wrote:I think that shift is happening right now, as part of the whole WTF? WE LOST?-post election soul searching thing and the resulting realisation that they need to consider the demographic realities, the realisation that makes Rubio look like the obvious 2016 GOP candidate.


Immigration and same-sex marriage are a world apart. I don't see any shift in support so far yet I do lots of talk about the need to attract Hispanics. Republicans have no chance of winning if they alienate their conservative base even if they do manage to capture a larger percentage of minority votes.
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Glaucon
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Glaucon » Thu Dec 13, 2012 12:55 pm

I read two articles both noting an unusual trend: normally, they can always get Republican politicians to comment on gay marriage, come out and make statements about it ("It's Adam and Eve, not Adam and STEVE!" bla bla etc.). But according to these articles, right now republicans are dodging these questions, declining to answer questions from reporters about it. As if there is an internal debate going on.
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Kaitlin » Thu Dec 13, 2012 1:18 pm

Glaucon wrote:I read two articles both noting an unusual trend: normally, they can always get Republican politicians to comment on gay marriage, come out and make statements about it ("It's Adam and Eve, not Adam and STEVE!" bla bla etc.). But according to these articles, right now republicans are dodging these questions, declining to answer questions from reporters about it. As if there is an internal debate going on.


I've seen a couple of similar articles but they don't seem to indicate support or giving up on this position.

http://www.salon.com/2012/12/11/gop_mum_on_supreme_courts_doma_case/
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Leah » Thu Dec 13, 2012 11:58 pm

Glaucon wrote:Many republicans seem to 'sense' the change on the wind, seem to feel that their position against gay marriage is not longer the electoral 'sure winner' it once was in most of the US and may become a 'sure loser' instead.


Heh, see, the problem here is that people keep doing that "monolithic entity" thing, too.

We've resorted to labels. People are "just" democrats, or "just" republicans. There can't be anything else to them. They can't have a range of views on a range of issues.

People forget that there are LGBT members of the Republican Party. That there are pro-choice members of the Republican Party. That there are women in the Republican Party. Athiests, African Americans, Asian Americans, Native Americans...

But hey. Labels are fun and always 100% accurate. ;)
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Glaucon » Fri Dec 14, 2012 8:10 am

@ Leah:

People are sheep. Herd animals. Armies typically move in one direction without having to be instructed to. And so do leaderless crowds.

And this is especially true for people in politics. They need to move in groups, large groups preferably, because without the numbers represented by such large groups, they have no power.

So, the 'label' is actually REALLY IMPORTANT. Not just because some people fit into category X or Y, but because they IDENTIFY with the label, and let the 'ideology' coming with the label SHAPE their opinions. Why ELSE would you see such a strong correlation between people that, say, a) Want low taxes b) Are christians c) Are 'tough' on immigration d) Want the USA to have a stronger military? There is no inherent reason for someone who wants low taxes to want a stronger military (after all, that has to be paid for with taxes) or for a christian to want a stronger military ('turn the other cheek') or want low taxes ('give unto the emperor') or be against illegal immigrants (Jesus WAS an illegal immigrant himself, probably). So, why do a lot of these views form a related cluster with many Americans? Because of the label/party ideology.

This is especially true for the political animal, the career politician. Sure, you may have your Ralph Naders and your Ron Pauls, but the obvious way to get ahead in a political party is to tow the party-line, to 'fit the bill' perfectly, without many dissenting opinions.

And such career politicians are generally very keen to keep their fingers on the 'pulse' of their party, to follow what they feel is the consensus within it. USA parties may not have 'chief whips'
like the UK parties do, but they do have party organisations that try to make everyone on a ticket of their party fall in line. But even without those, people would be alligning themselves to 'fit' with the current party-line. And if that 'line' is uncertain... under internal discussion, they will become careful, go silent on it. This 'mechanism' is pretty much a given for any political party, anywhere.

So... as much as you may resent 'labels'... you cannot understand politics in modern democracies without considering them.
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Re: Supreme Court Picks up Same Sex Marriage - Likely Outcom

Postby Alice McConnell » Fri Dec 14, 2012 9:21 am

Labels schmabels, but... the group tag thing is really important in politics, I agree.

About the OP: I'd guess it would be unlikely to be a loss for the pro gay marrriage side. As I understand it, they can either rule that it is a matter for individual states (rendering the whole DOM thing impotent) which is okay for that side, or they can rule it is not, in which case they will open up the possibility for a nation-wide right to gay marriage in the near future, regardless of what conservative states may want.

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