U.S. Supreme Court and Gay Marriage

  • ChicagoSteve

    Posts: 1279

    May 24, 2015 9:50 PM GMT
    Ireland is the latest country to pass gay marriage. Just curious, what do you think will be the outcome of the U.S. Supreme Court decision regarding this issue?
  • Whipmagic

    Posts: 1481

    May 25, 2015 5:32 PM GMT
    I'm quite certain the Sureme Court will give us nationwide marriage equality. The main question will be how far they go in their opinion, and what reasoning they use. I suspect it will be that marriage is a "fundamental right" as they have acknowledged before when it came to interracial marriage, marriage of incarcerated felons, and deadbeat dads. This would impact only marriage, and nothing else, so discrimination in other areas would be unaffected. I don't think they will want to rule on the broader "equal protection" claim, and decide which level of scrutiny other laws that discriminate against us will get.
  • Svnw688

    Posts: 3350

    May 25, 2015 6:46 PM GMT
    Hmm, I concur with WhipMagic's conclusions, but almost completely disagree with the reasoning.

    From my perspective, I believe the Court will 5/4 (with Kennedy being the swing) provide nationwide same-sex marriage rights. However, I believe the Court will say marriage is a fundamental right for GAY Americans. Marriage is already a fundamental right, and has been for over a century under SCOTUS jurisprudence. Extending it to same sex couples acknowledges the discrimination this insular minority faces, which could, at least in theory, add a "rational basis plus" or "heightened" (a la women/females) scrutiny for ALL laws facially classifying people along lines of sexuality.

    On the other hand, if the SCOTUS uses an Equal Protection argument then you're essentially saying a denial of gay marriage is a GENDER issue, which is already a protected class (heightened scrutiny) and would, theoretically, do nothing more for gays other than gay marriage. If the SCOTUS adopts this approach, I predict 7/3 (with Kennedy AND Roberts joining). Roberts will join a case framed as gender discrimination. Roberts will not join a fundamental right to same sex marriage opinion because that has implications for every law that classifies based on sexuality.

    I really don't see Kennedy backing away from same-sex marriage, and doing some "but you have to honor other state's unions" argument. It was made in oral arguments, but didn't have much traction or air time.