Will Prop 8 End Not With a Bang but a Legal Whimper?

Nondiscrimination is a "wonderful destination," as Justice Kennedy said, but we still don't know if he'll lead the nation there

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Mark Wilson / Getty Images

A pro-gay-marriage banner is held in front of the Supreme Court in Washington on March 26, 2013

Justice Anthony Kennedy — widely viewed as the pivotal swing vote — got pulses racing early in today’s same-sex-marriage argument at the Supreme Court. There is “immediate legal injury” being done to 40,000 California children being raised by same-sex parents who are not allowed to marry, he insisted. These children “want their parents to have full recognition and full status,” he said — and “the voice of those children is important in this case.”

Court watchers immediately flooded Twitter and live blogs with the news: after that “vivid” comment, it was suddenly looking like there might be five votes — Justice Kennedy and the court’s four liberals — for a sweeping pro-gay-marriage ruling. But before long, Justice Kennedy seemed to reverse direction, openly questioning whether the court had made a mistake in accepting the case at all.

(MORE: Court Could Avoid Ruling on Gay Marriage)

Today’s oral arguments — in a challenge to California’s Proposition 8, which banned same-sex marriage — took place under a glaring national spotlight. Television cameras and throngs of reporters descended on the Supreme Court. Crowds of ordinary citizens gathered out front to express their views and to try to influence the Justices, in some cases with wacky signs in tow. (Sample: “Gays have every right to be as miserable as I make my husband.”) For months now, there has been a growing expectation that the Supreme Court would use this case to issue a landmark constitutional ruling, resolving for the history books whether same-sex couples have a right to marry.

But the Justices’ questions at oral argument suggested another possibility: that the Proposition 8 case may end not with a bang but with a hypertechnical legal whimper. It is always perilous trying to predict what the Supreme Court will do based on the Justices’ comments at oral argument, but it now may be that the likeliest outcome is a punt on the hard constitutional questions: the Justices may simply dismiss the case. That would most likely mean that a lower-court ruling invalidating Prop 8 would remain in effect — which would keep same-sex marriage legal in California but not affect other states.

(MORE: Cohen: Why the Supreme Court Is Likely to Rule for Gay Marriage)

That is one way to count the votes at today’s oral argument: put Justice Kennedy with the court’s four conservatives, and there are not enough votes for a bold pro-gay-marriage ruling. It is not, however, the only way. At another point in the argument, Justice Kennedy said the case could take the court into “uncharted waters” or a “wonderful destination” — though he also worried that it could be a “cliff.” In that brief and highly contradictory comment — which is already being closely parsed — Justice Kennedy seemed to be deeply ambivalent: worried about the risks of a broad pro-same-sex-marriage ruling, while nevertheless excited about the possibilities.

The court will have another chance to wrestle with the question tomorrow, in a second case that challenges the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages and decrees that states do not have to recognize same-sex marriages performed in other states. That case, however, could well be resolved as a question of states’ rights or other legal doctrines that do not directly engage the key question of whether same-sex couples have a constitutional right to marry.

(MORE: Why Republicans Are Saying “I Do” to Gay Marriage)

Even some supporters of same-sex marriage think that a modest Supreme Court ruling — like one that allows same-sex marriages to continue in California but does not extend them further — could be a good thing. Political support for gay marriage continues to grow by the day — Senator Mark Warner of Virginia just got on board yesterday — and the momentum shows no sign of slowing. Advocates for a political solution argue that there will be less polarization and backlash if same-sex marriage gets adopted through the political process.

Appealing though that argument may be in some ways, it has serious flaws. If the Supreme Court fails to act, gay people in some parts of the country may have to wait many years before their home states recognize their right to marry — or they may have to move in order to marry. And rights that legislatures give they can also take away. Only the Supreme Court can declare that gay people have a fundamental constitutional right to marry — no matter what the politicians say.

(PHOTOS: Divided: Same-Sex Marriage Demonstrations)

It is for these reasons that how Justice Kennedy comes down matters so much. Same-sex marriage is no longer the “uncharted waters” that he fears. We now have evidence from across the country that gay marriage has enormous upsides — including for the children Justice Kennedy rightly worried about — and no discernible downsides. Nondiscrimination is, in all its forms, a “wonderful destination,” as Justice Kennedy so aptly put it. By the time the Supreme Court’s term ends in late June, we will know if he proved courageous and forward-looking enough to lead the nation there.

MORE: Pride and Prejudice: An Interactive Timeline of the Fight for Gay Rights

34 comments
DesFly
DesFly

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timevicente
timevicente

Welcome back to life, Sodom and Gomorrah!  Good bye, Sanity.

DURBEM
DURBEM

%s "Joe's a gun store owner and NRA member—and he supports background checks for all gun sales: %sZG%sAct

human_figure
human_figure

@TIMEIdeas We say discrimination but we do not define properly whose substance are discriminate

Gypsysheppard
Gypsysheppard

@TIMEIdeas Where are you people taking this nation? Hell? AIDS. Are you people trying to find the most disease this world can discover?

AhContraire
AhContraire like.author.displayName 1 Like

A FEW QUESTIONS/COMMENTS on GAY MARRIAGE:

If gay marriage is ok, why not make polygamy, incest, or pedophilia, OK?

And all of aforementioned in the name of 'LOVE' will justify them all? Do the "ends" justify the "means" at any cost?
Are gays really being honest with themselves and others in "coming out of the closet"? Why the need for gay "pride" in the first place decades ago?

Perhaps someone can explain why they want to shame others for their hate or homophobia when they themselves needed to advertise and promote their own "pride" well before anyone knew about gay pride?


ONE LAST POINT/QUESTION.
Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.

 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Can't stand the "Proud-to-call-New-Orleans-Home" bumper sticker types?
Too afraid to follow me on Twitter?
You can still bookmark me on Twitter at
@AhContraire
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

snidermr
snidermr

@AhContraire You are just posting questions to rile people on this board.  You are what is known as a TROLL!

AhContraire
AhContraire

@snidermr@AhContraire 

To snidermr:


Notice how NOT A SINGLE GAY and LESBIAN PERSON has  or can answer the LAST POINT / QUESTION...But here is is again...


ONE LAST POINT/QUESTION.
Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.





- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
"I never give them hell. I just tell the truth and they think its hell." - Harry S. Truman
Can't stand the "Proud-to-call-New-Orleans-Home" bumper sticker types?
Too afraid to follow me on Twitter?
You can still bookmark me on Twitter at
@AhContraire
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -




 

AhContraire
AhContraire

@LisettePotato@AhContraire 

YOUR REFERENCE:
"In 2008 the California Supreme Court distinguished polygamy from the right to same-sex marriage by explaining that polygamy is "inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry."

To those who don't know, the word, "inimical" means"

in·im·i·cal ( -n m -k l). adj. 1. Injurious or harmful in effect; adverse: habits inimical to good health. 2. Unfriendly; hostile: a cold, inimical voice.

SO LET GET TO WHAT IS HARMFUL and REPEAT the LAST PART show below, AGAIN:

ONE LAST POINT/QUESTION.
Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.


 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
"I never give them hell. I just tell the truth and they think its hell." - Harry S. Truman
Can't stand the "Proud-to-call-New-Orleans-Home" bumper sticker types?
Too afraid to follow me on Twitter?
You can still bookmark me on Twitter at
@AhContraire
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

MatthewRicks
MatthewRicks like.author.displayName 1 Like

Mr. Cohen- do more research before you write your next article in such a biased fashion. "gay marriage has enormous upsides and no discernible down-sides."  Almost all upsides (which primarily benefit only homosexual couples and not the vast majority of society) can be achieved with civil unions (and should be).  Downsides include a loss of religious liberty (which you can see happening in Europe and at home- remember that photographer who declined to be hired for a same-sex wedding in, I believe, New Mexico). They also form less stable and capable of raising those children who they choose to artificially or surrogately conceive (speaking only of capabilities made possible through gender complementarity).  The State does not have a need to incentivize such relationships through tax breaks etc because they are not equal in fulfilling a state interest.

Marriage is not a right- it is a conglomeration of rights and incentives.  Same-sex couples are due the rights- but not the incentives (some of which have connection to child rearing (think critically about the cases when it is profitable for a couple to file taxes jointly.))

Furthermore, riddle me this- if gay marriage is constitutional- what arguments are left- which supporters have not railed against- for not allowing polygamy or poly-amorous marriages?

The Supreme Court should uphold proposition 8 and section 2 of DOMA so that States are guaranteed their constitutional power (affirmed by the supreme court in many cases) to protect the morals and general order of their state and people.  Section 1 of DOMA is a different story. 

https://prudentprogress.wordpress.com/same-sex-marriage-part-2/

snidermr
snidermr

@MatthewRicks You are going off the deep end here.  As in ridiculous.  If the SCOTUS rules that same sex marriage is constitutional, then same sex couples will get the same right to marry that opposite sex couples are getting already.  There is no stipulation in the constitution for polygamy or poly-amorous marriages already.  I believe at one time Mormons were polygamists but, that isn't done anymore.  But, the fact is that your marriage will not be affected by anyone's marriage of same sex couples.  If it is determined that same sex couples cannot get marriage with the same equal rights of opposite sex couples, then what about divorce?  Unfortunately, civil unions do not provide same sex couples the right to be with their spouses in the hospital ICU.  When their spouse is dying, they don't have the right to sit with them and comfort then.

If marriage is a right under the constitution for opposite sex couples, it must be a right for same sex couple.  Let's see what the SCOTUS says.

geerterri
geerterri

"The Supreme Court should uphold proposition 8 and section 2 of DOMA so that States are guaranteed their constitutional power (affirmed by the supreme court in many cases) to protect the morals and general order of their state and people."

Do you have a valid reason for not acknowledging the legal marriages in the States that do allow same-sex marriage?

LMcG
LMcG like.author.displayName like.author.displayName 2 Like

@MatthewRicksYour list of so-called downsides is laughable. You're suggesting that one individual's religious liberty is more important than another individual's liberty to marry a person whom they love. You then go on to suggest that heterosexual couples make for more stable and capable parents in a country that has the sixth highest divorce rate in the world. That's ignoring the assumption that all married homosexual couples would want children in the first place, and even then that they would choose to surrogate instead of adopt. In the case of the latter, I would think that the scores of children waiting to be adopted would far rather be raised by a homosexual couple than remain orphaned.

All of the arguments you've attempted to make are weak at best because the so-called "morals and general order" of states and their people are flawed. If they weren't there would be no broken homes, which is the tip of the iceberg of what could be called into question about society's ills.

It's unthinkable that in the 21st century we're still debating what should be a total non-issue, with people comparing a marriage between two individuals to polygamy, beastiality and the like on top of it all. That suggests a clear lack of normal logic.

At the end of the day, the proof is in the pudding - a number of progressive countries including your northern neighbours, European countries and South Africa have approved gay marriage - and unsurprisingly the world hasn't come to an end for any of them as a result of the ruling. Imagine if all of this effort fighting the inevitable were spent on productive matters.

FernandoOrozco
FernandoOrozco

@LMcG @MatthewRicks Respectfully disagree; the slippery slope @matthewricks brought up does hold water. Thailand, you can have sex with a little boy and the world hasnt ended because of it; its kind of accepted over there, but here we condemn it. Thats what happens when you allow things to happen; it happens more and more and more, and people become numb to it and dont really care cuz "everyones doing it anyways." much like the abortion topic in that before alot of people were against it, but since it was allowed, more and more people did it and now society is kind of like "whats the big deal?" everyones doing it. Im pretty sure back in the holocast days, it was becoming normal, what hitler was doing, to alot of people.(extreme example i know) i believe john adams said our constitution doesnt not fit in with a non moral man. But i respect your opinion and views, just like i hope you respect mine

dawn
dawn like.author.displayName 1 Like

Why do we vote??  Twice California voted against it.  The people spoke and it doesn't matter.

snidermr
snidermr

@dawn My last reply should have read:  Allowing the "people" to vote was a mistake IMHO.  We should not have the right to tell others what their rights should be.  Where have you read that it is your right to tell others how to live lives?

JarredPhillips
JarredPhillips like.author.displayName 1 Like

@dawn Please stop using this as an arguing point. There are still states or at least counties that could put slavery on a ballot this November and have it pass. Do you think that law should stand because the majority of voters were for it? State and local governments cannot pass a law that contradicts the constitution even if every single citizen of voting age agrees with the law. People only seem to like the law when it agrees with them, which is human nature and understandable. Acknowledging another persons rights doesn't mean you have to agree with their lifestyle. Personally I get a little freaked when I see men being affectionate with each other in public. I'll defend their right to "freak" me out though. The other argument from the self taught constitutional law experts is that " I read the whole constitution and I couldn't find the word marriage mentioned once?" And my response is "are you that ignorant? Of course you are !"

A marriage license is provided by the state right? The same could be said of a drivers license. If a bunch of morons in some moronic state overwhelmingly vote to stop issuing drivers licenses to women because they think women are horrible drivers then why shouldn't they be able to do it? I mean who cares that in this supposed state there is a huge difference in the amount of women voters(less) than male voters(more). I guess the men in that supposed state could even make raping women legal. If the majority ,which is men, want it then why not? You can't refuse a woman or a man a drivers license based on their sex. Same thing goes with marriage licenses.(14th amendment) I'm sure somewhere in the constitution there an amendment that prevents a local government from allowing rape, even if the word rape itself isn't used.

FernandoOrozco
FernandoOrozco

@JarredPhillips That slavery example is excessive; no one is putting gays in jail, or prohibiting them from being gay. Where does it stop though? Your sister? Your dog? An insect? A five year old boy? I know they sound ridicoulous now, but i bet if more people do it, and more people do it, and it gets media attention and so forth, that too will head to the polls

FernandoOrozco
FernandoOrozco

@snidermr @FernandoOrozco My opinions; you have yours and i have mine, i respect everyone who respects me. Name calling, thats little kid stuff

JarredPhillips
JarredPhillips like.author.displayName 1 Like

@FernandoOrozco I was using slavery as an example of a view that is still popular in certain areas and could be reinstated if put up for vote in certain counties in this great country of ours. I also find the 5 year old boy, insect animal marriage defense is pointless. I am male and have a female pet cat. I emotionally love my cat and I think the cat feels the same. I am not sexually attracted to my cat and even if I were ,any sexual act with the cat would be considered rape. If beastiality were ever argued in court the defense would have to prove the animal was consenting and even if a device is invented in the future that translates animal thoughts and sounds to English, they would still lose. They would lose because even a genius animal would still be less compotent than an 18 year old human. We may tell ourselves that we don't allow beastiality and adult/minor relations because it disgusts us but in reality they were proven to be wrong by concise sane legal arguments. This whole argument is beginning to look as silly as slavery or interracial marriage. If you can't see why it should be allowed then you are a close minded fool. No one is going to make you or your church accept or recognize these marriages. The government needs too. That's what this is all about. I think some married couples think that legal gay marriage somehow lessons their marriage. Just remember that your god will always love you and your spouse more than the "qu**rs".

snidermr
snidermr

@FernandoOrozco Are you just trolling this board?  It seems that your arguments are just to rile others which is the definition of TROLL.

FernandoOrozco
FernandoOrozco

@shybystander @FernandoOrozco Hello, in regards to the, boy? Dont you mean child thing?, it was a scenerio; of course the same scenerio could be used for girls, so fine, child if that makes you feel better about my example, even though im pretty sure you knew what i meant and are just trying to point out little errors that deviate from the point i was trying to make lol; but wow, you would be ok with your son and daughter getting married? How about your son and your father? Or your daughter and your brother? As long as theyre over 18yrs, that would be fine to you? Thats pretty disgusting to me and i sure wouldnt want to live in a society where thats ok

snidermr
snidermr

@FernandoOrozco What do you mean by:  "But i bet if more people do it, and more people do it, and it gets media attention and so forth, that too will head to the polls?"

What is "it"?  If you are referring to same sex marriage, it is ridiculous to think that if it is a right already in the constitution, it will be used to marry any other thing than your same sex partner or your oppositive sex partner.  What makes you think this is a slippery slope.  If you were unable to do something that everyone else could do because of some random reason - like you were left handed or color blind, wouldn't you fight to get that right back?

shybystander
shybystander like.author.displayName 1 Like

 @FernandoOrozco With all due respect, I hear these arguments far too often and they  really do  not stand to reason if I may say so. Granting people their rights does not equal to "anything goes" and the reasons why you can´t and you shouldn't be able to marry your dog or a five-year-old are too obvious: such a union would not be consensual, and therefore immoral. Your dog can not say "I do" , nor can an insect, and I gather a grasshopper would not make for a great partner :) And much more seriously a relationship with a minor is obviously statuary rape Same-sex marriage happens between adult, consenting citizens so it´s a totally different matter. Yes, you can always bring up same-sex adoption, but that is another matter that in my opinion should be treated separately. I support it but I totally get that people may have a different opinion. There is a debate there, but I don't feel there should even be a debate about same-sex marriage

By the way, you cite ¨five year old boy¨ among your concerns. I think you meant ¨child¨". Or is it right to marry a five year old girl? Tragically there are many countries in the world where girls are married by their parents when they are 12 years old, which IMHO is really disgusting. As for marrying your sister, even if it may feel truly repulsive to most of us, I cannot see the reason far law to ban it. Then I will have my own opinion about it, law does not rule over our opinions, likes or dislikes. As for gay marriage, it does not affect me or my family in any negative way in the least and I cannot conceive how it can affect others but for those getting married.

Finally, I do think the slavery example is valid, and you could add women´s vote. Yes, people were putting gays in jail in some states until recently and in many countries around the world it is that or even death sentence so it is not a trivial matter. And not so long ago, people would go ¨what´s next, women voting?" or would lynch an African American for loving a Caucasian... In the end it is just about granting the same rights in love and personal development for all people as long as their actions involve adult, consenting partners. .

snidermr
snidermr like.author.displayName 1 Like

@dawn Allowing the "people" to vote as a mistake IMHO.  We should have the right to tell others what their rights should be.  Where have you read that it is your right to tell others how to live their lives?