How will SCOTUS rule on SSM?

[CriticalThought]

The arguments have been heard and the die cast. The point of no return has been reached. Either the Supreme Court will acknowledge there is a Constitutional right to same-sex marriage or they will decide no such right exists and defer to the states. While it is difficult, if not impossible, to determine how the Justices will rule based on their arguments, I see no harm in speculation.

I personally saw a 60% chance of SCOTUS making a 5-4 ruling in favor of SSM before the arguments but now I think there is a 60% chance they will rule against it. Even though Roberts and Kennedy seem to support the principle of same-sex marriage, their arguments seem to suggest a concern for backlash against the institution if it were decided by the court and a potential slippery slope for the institution as a whole if states lose the authority to regulate it in this case. As Scalia mentioned, there are consequences to determining a Constitutional right to same-sex marriage that do not exist if states are permitted to slowly come to the decision on their own, namely whether or not religious authorities would be expected to recognize and perform such ceremonies or the freedom of religion guarantee would take precedence.

There is a long shot chance that Roberts will side with the liberal justices and it will be ruled on the basis of "sexual discrimination" which would get around the slippery slope issue, but such a decision is hard for me to imagine.

Based on the arguments, there is clearly no chance that they will rule that states that prohibit SSM will be required to recognize legal same-sex marriages from other states. As was argued, such a ruling would effectively allow one state to set marriage policies for the other 49.

And contrary to what some posters believe is possible, SCOTUS cannot rule in this case in any way that would create a separate but equal legal designation for same-sex couples such as civil unions. Unfortunately, this is an all or nothing gamble.

 

[rathi]

You are putting way too much stock in oral arguments. Half the questions they ask are simply so they can spin a dramatic narrative about their ruling, not because they actually care about the answers. Kennedy clearly wants to create the impression of how carefully he weighed both sides in his "historic" decision.

 

[LowDown]

The arguments have been heard and the die cast. The point of no return has been reached. Either the Supreme Court will acknowledge there is a Constitutional right to same-sex marriage or they will decide no such right exists and defer to the states. While it is difficult, if not impossible, to determine how the Justices will rule based on their arguments, I see no harm in speculation.

I personally saw a 60% chance of SCOTUS making a 5-4 ruling in favor of SSM before the arguments but now I think there is a 60% chance they will rule against it. Even though Roberts and Kennedy seem to support the principle of same-sex marriage, their arguments seem to suggest a concern for backlash against the institution if it were decided by the court and a potential slippery slope for the institution as a whole if states lose the authority to regulate it in this case. As Scalia mentioned, there are consequences to determining a Constitutional right to same-sex marriage that do not exist if states are permitted to slowly come to the decision on their own, namely whether or not religious authorities would be expected to recognize and perform such ceremonies or the freedom of religion guarantee would take precedence.

There is a long shot chance that Roberts will side with the liberal justices and it will be ruled on the basis of "sexual discrimination" which would get around the slippery slope issue, but such a decision is hard for me to imagine.

Based on the arguments, there is clearly no chance that they will rule that states that prohibit SSM will be required to recognize legal same-sex marriages from other states. As was argued, such a ruling would effectively allow one state to set marriage policies for the other 49.

And contrary to what some posters believe is possible, SCOTUS cannot rule in this case in any way that would create a separate but equal legal designation for same-sex couples such as civil unions. Unfortunately, this is an all or nothing gamble.

I don't think that the SCOTUS as a whole will have the courage to stand up against the debasement of the tradition of marriage. There is hardly anything left to defend anymore, anyway. Marriage, like so much else, has degenerated so much that it has no real value. Smart men avoid it. SSM is just a symptom of this state of affairs, not the cause.

 

[CriticalThought]

You are putting way too much stock in oral arguments. Half the questions they ask are simply so they can spin a dramatic narrative about their ruling, not because they actually care about the answers. Kennedy clearly wants to create the impression of how carefully he weighed both sides in his "historic" decision.

If that is true then he deserves an Oscar for his performance.

 

[chromium]

You are putting way too much stock in oral arguments. Half the questions they ask are simply so they can spin a dramatic narrative about their ruling, not because they actually care about the answers. Kennedy clearly wants to create the impression of how carefully he weighed both sides in his "historic" decision.

Unfortunately, his decisions aren't certain, so his seeming hesitation will cause a couple tense months.

But you're right. He's trying to give the court credibility by making it seem he hadn't already made up his mind and there is in fact a point to the oral arguments. If you look at his interruptions later on, he clearly had scripted the whole thing, but then, i guess that's on the lawyers for being so damn predictable

 

[Mr Peabody]

I don't see how they could legally rule in favor of SSM. If they rule in favor, they can't turn around and say 'NO' to a request to marry multiple partners. What would be the legal justification for okaying one but refusing the other? The same arguments could be used to support multiple marriage partners as are being used to support SSM. And that would only be the beginning. Of course the SCOTUS has been known to make wrong decisions many times before, so don't be surprised.

 

[WorldWatcher]

I don't see how they could legally rule in favor of SSM. If they rule in favor, they can't turn around and say 'NO' to a request to marry multiple partners. What would be the legal justification for okaying one but refusing the other? The same arguments could be used to support multiple marriage partners as are being used to support SSM. And that would only be the beginning. Of course the SCOTUS has been known to make wrong decisions many times before, so don't be surprised.

Not quite true

There are many arguments against polygamy from a historical perspective that if managed properly would no longer be a large issue.

1. 1. In the past such societies were almost exclusively polygamous (1 man, multiple women) and structured in such a way as to be abusive to women. Women were viewed almost as property and were expected to be subservient to the man.
2. 2. It was not uncommon for older men to exercise political (or religious) "power" over community such that very young women were forced into marriages with these older men (often much older) and left with no means of escape from the community. (i.e. statutory rape with no means of escape.)
3. 3. High concentrations of polygamous marriages tends to skew the natural ratios of the available male/females in a given population. If you have one man marrying multiple women, those women are effectively removed from the - ah - market so to speak. Now you have an increased number of males while at the same time having a shortage of available females. Leading to problems with how to deal with the males who were often excluded from the community.

Now, these reasons may not be as valid today in a modern western civilization society - although many of these problems might still be applicable to African and Middle-Eastern societies. Much larger and more mobile populations also reduces the impact of past wrongs which occurred in isolated enclaves.


However from a modern perspective there are still valid reasons against legalized polygamy.

Legal View: There is no legal framework to deal with partners in a Civil Marriage that exceeds two persons and the issues that are already complex enough dealing with two individuals and possibly children let alone increasing those issues exponentially with each additional spouse.

In each bigamous marriage, there would be at a minimum three legally intertwined status:
A married to B,
A married to C, and
B married to C.

Add a fourth spouse and you get:
A married to B
A married to C
A married to D
B married to C
B married to D
C married to D

Add a fifth spouse and you get:
A married to B
A married to C
A married to D
A married to E
B married to C
B married to D
B married to E
C married to D
C married to E
E married to D

Add another, etc...


So you have issues with property on who owns what, what was brought into the marriage when. If C decides he/she no longer wants to be part of the plural marriage to what extent is he/she awarded property from A, B, D, and E.

You have issues also with children. Who are the parents. The biological parents or are all adults in a plural marriage equally parents. In the event of a divorce who gets child custody? Visitation? Child support? etc...

When the discussion is about marriage between two consenting adults the current legal system will support it because laws, courts, etc... are geared toward dealing with the same situations. Linear increases in the number of spouses causes an exponential increase on the courts in dealing with those issues.


So there is a secular reason to be leery of bigamy as a government recognized entity that has nothing to do with religion or morality.


>>>>

 

[Lakryte]

The arguments have been heard and the die cast. The point of no return has been reached. Either the Supreme Court will acknowledge there is a Constitutional right to same-sex marriage or they will decide no such right exists and defer to the states. While it is difficult, if not impossible, to determine how the Justices will rule based on their arguments, I see no harm in speculation.

I personally saw a 60% chance of SCOTUS making a 5-4 ruling in favor of SSM before the arguments but now I think there is a 60% chance they will rule against it. Even though Roberts and Kennedy seem to support the principle of same-sex marriage, their arguments seem to suggest a concern for backlash against the institution if it were decided by the court and a potential slippery slope for the institution as a whole if states lose the authority to regulate it in this case. As Scalia mentioned, there are consequences to determining a Constitutional right to same-sex marriage that do not exist if states are permitted to slowly come to the decision on their own, namely whether or not religious authorities would be expected to recognize and perform such ceremonies or the freedom of religion guarantee would take precedence.

There is a long shot chance that Roberts will side with the liberal justices and it will be ruled on the basis of "sexual discrimination" which would get around the slippery slope issue, but such a decision is hard for me to imagine.

Based on the arguments, there is clearly no chance that they will rule that states that prohibit SSM will be required to recognize legal same-sex marriages from other states. As was argued, such a ruling would effectively allow one state to set marriage policies for the other 49.

And contrary to what some posters believe is possible, SCOTUS cannot rule in this case in any way that would create a separate but equal legal designation for same-sex couples such as civil unions. Unfortunately, this is an all or nothing gamble.

The court is not deciding whether or not same-sex marriage is a right. The will decide whether same-sex couples can be excluded from the right to marry. Not quite the same question.

I don't think oral arguments changed anything. The lawyer defending the state bans said marriage had nothing to do with dignity, which Kennedy sharply questioned and rebutted during oral arguments. Kennedy challenged both attorneys, and his comments seemed more critical overall towards the o anti-ssm argument. Even Roberts had a few skeptical questions for the anti-ssm lawyer, such as asking why this wouldn't be considered sex discrimination.

What is clear is that the four liberals will vote to strike down the bans, Alito, Scalia, and Thomas will vote to uphold them, and Roberts and Kennedy remain wild cards as always. Kennedy will likely be the swing vote in a 5-4 decision considering he has authored all SCOTUS rulings protecting gay rights. Roberts might concur with the majority but for different reasons (arguing sex discrimination perhaps).

 

[Lakryte]

I don't see how they could legally rule in favor of SSM. If they rule in favor, they can't turn around and say 'NO' to a request to marry multiple partners. What would be the legal justification for okaying one but refusing the other? The same arguments could be used to support multiple marriage partners as are being used to support SSM. And that would only be the beginning. Of course the SCOTUS has been known to make wrong decisions many times before, so don't be surprised.

The question would be twofold: What is the government interest in the exclusion, and does the exclusion further than interest.

The states' argument in the ssm case is that states have an interest in connecting children with their biological parents, which is also the alleged purpose of marriage licenses. According to them, allowing same-sex couples to marry would undermine that interest by discouraging children to be born in marriage and raised by their biological parents. Apparently this reasoning does not extend to heterosexual adoptive parents or infertile heterosexual couples...a major weakness of the argument.

The states may argue something completely different when it comes to polygamy, as WorldWatcher explained quite well above. The government interest in excluding same-sex couples is not the same as the interest in excluding polygamous couples, hence one exclusion may very well be unconstitutional while the other remains perfectly legal.

 

[akrunner88]

I don't see how they could legally rule in favor of inter-racial marriage. If they rule in favor, they can't turn around and say 'NO' to a request to marry multiple partners. What would be the legal justification for okaying one but refusing the other? The same arguments could be used to support multiple marriage partners as are being used to support inter-racial marriage. And that would only be the beginning. Of course the SCOTUS has been known to make the wrong decisions before so don't be surprised.

 

[Mr Peabody]

Everything you say is true, worldwatcher, but what is the LEGAL justification for denying mu tiple spouses? The argument used in favor of gay marriage, is basically this: " If I love that person, the government has no right to deny me the happiness of marring him/her.. It's would be discriminatory to deny me that right." The same argument could be used by a married man who wants to marry a second wife.

 

[WorldWatcher]

Everything you say is true, worldwatcher, but what is the LEGAL justification for denying mu tiple spouses? The argument used in favor of gay marriage, is basically this: " If I love that person, the government has no right to deny me the happiness of marring him/her.. It's would be discriminatory to deny me that right." The same argument could be used by a married man who wants to marry a second wife.

There are many arguments against polygamy from a historical perspective that if managed properly would no longer be a large issue.

1. 1. In the past such societies were almost exclusively polygamous (1 man, multiple women) and structured in such a way as to be abusive to women. Women were viewed almost as property and were expected to be subservient to the man.
2. 2. It was not uncommon for older men to exercise political (or religious) "power" over a community such that very young women were forced into marriages with these older men (often much older) and left with no means of escape from the community. (i.e. statutory rape with no means of escape.)
3. 3. High concentrations of polygamous marriages tends to skew the natural ratios of the available male/females in a given population. If you have one man marrying multiple women, those women are effectively removed from the - ah - market so to speak. Now you have an increased number of males while at the same time having a shortage of available females. Leading to problems with how to deal with the males who were often excluded from the community.

Now, these reasons may not be as valid today in a modern western civilization society - although many of these problems might still be applicable to African and Middle-Eastern societies. Much larger and more mobile populations also reduces the impact of past wrongs which occurred in isolated enclaves.


However from a modern perspective there are still valid reasons against legalized bigamy.

Legal View: There is no legal framework to deal with partners in a Civil Marriage that exceeds two persons and the issues that are already complex enough dealing with two individuals and possibly children let alone increasing those issues exponentially with each additional spouse.

In each polygamous marriage, there would be at a minimum three legally intertwined status:
A married to B,
A married to C, and
B married to C.

Add a fourth spouse and you get:
A married to B
A married to C
A married to D
B married to C
B married to D
C married to D

Add a fifth spouse and you get:
A married to B
A married to C
A married to D
A married to E
B married to C
B married to D
B married to E
C married to D
C married to E
E married to D

Add another, etc...


So you have issues with property on who owns what, what was brought into the marriage when. If C decides he/she no longer wants to be part of the plural marriage to what extent is he/she awarded property from A, B, D, and E.

You have issues also with children. Who are the parents. The biological parents or are all adults in a plural marriage equally parents. In the event of a divorce who gets child custody? Visitation? Child support? etc...

When the discussion is about marriage between two consenting adults the current legal system will support it because laws, courts, etc... are geared toward dealing with the same situations. Linear increases in the number of spouses causes an exponential increase on the courts in dealing with those issues and government resources in providing equal access to services.


So there is a secular reason to be leery of plural marriages as a government recognized entity that has nothing to do with religion or morality.


>>>>

 

[roguenuke]

Everything you say is true, worldwatcher, but what is the LEGAL justification for denying mu tiple spouses? The argument used in favor of gay marriage, is basically this: " If I love that person, the government has no right to deny me the happiness of marring him/her.. It's would be discriminatory to deny me that right." The same argument could be used by a married man who wants to marry a second wife.

You approach this from the wrong way when it comes to a legal discussion of marriage and court cases. A law is being challenged and has been determined to be "unequal treatment", this would potentially be true for both those who want to marry someone of the same sex and those who wish to take on multiple spouses. The law is not looking at the argument of "I love that person, the government has no right to deny me marriage". That isn't the argument. The actual argument is "I am similarly situated to these people (opposite sex couples) who are recognized as married, with the only thing being different about us is our legal sex combinations, yet in this country, the sexes are supposed to be treated equally, and as far as spousal laws are concerned, they are, so what is the government's reason for denying me marriage recognition?". This argument doesn't work out for multiple spouses for a person because they are not legally similarly situated to either opposite sex or same sex couples because of the number of people involved in the legal arrangement. Marriage does not just create a legal relationship between two people, it makes two people each other's closest legally recognized kin. Our laws currently work so that only one person can be recognized as such because major legal complications arise from recognizing more people as such.