Prop 8 Prediction

The case will very likely be heard by the Supreme Court of the United States. Assuming Kagan is on the bench and the lineup remains, I predict there will be 4 votes for gay marriage, 4 against with Justice Kennedy breaking the tie AGAINST constitutionalizing gay marriage. BUT Kennedy being Kennedy he very likely would “split the baby” by demanding a federal constitutional right to civil unions that grant all the rights of marriage other than the name.

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19 Responses to Prop 8 Prediction

  1. AMW says:

    How long does it typically take a case like this to make it’s way to the Supreme Court?

  2. Pinky says:

    This is an interesting issue that Americans are being forced to face.
    My prediction (long term ?) is that it will come down to a Constitutional amendment to define the basic family unit as having a mother (female), a father (male), and at least one child. That way, a marriage can be anything.

  3. James Hanley says:


    It will probably take 9-12 months in the 9th Circuit, longer if the losing side request an en banc rehearing. Then about that much longer at the Supreme Court. There’s be no Supreme Court hearing in the 2010-11 session, but could be in the 2011-12 session.

  4. Craig says:

    So there would be “marriage” and “schmarriage” (let’s say). What would be the point of having two names for the same thing? That’s cutting the baloney/baby pretty thin, no?

  5. Johnny In Georgia says:

    Oh yeah, that whole “separate but equal” thingy has a history of really working out well. Brilliant compromise on his part should he take that path.

  6. twc says:

    How can Justice Kennedy “demand” anything?
    He is one of nine SCOTUS Justices who will (probably) decide the case eventually. They will affirm or reverse (in whole or in part) the decision of the 9th Circuit Court of Appeals, which will review the District Court’s decision, which only decided whether Prop 8 is constitutional (so it can stand) or not (so it is unenforceable). Prop 8 bans gay marriage. The District Court decided that was not constitutional.
    I don’t see how civil unions enter into it.
    A Supreme Court Justice can only (help to) decide the case in front of the Court.

  7. Jon Rowe says:

    Re separate but equal, as a libertarian I support abolishing government recognition of marriage. That would mean civil unions for all where churches and other private institutions get to recognize who gets “married.”

    Yet, while post-Brown we never accept separate but equal on racial issues, we do to this day on gender issues. Homosexuality is arguably more analogous to gender discrimination than racial. Or at least the phenomena of homosexuality is, for obvious reasons, more a “gender” related issue (because it is) than a racial one.

  8. Tyler says:

    Why do you think Kennedy is any less liberal on gay issues than the liberals on the court? Just because he goes for Citizens United and McDonald does not mean he’s not liberal on other issues. He leads the court in restricting harsh punishments for minors, for one. On gay issues, he’s **written** the only two pro-gay opinions, including one with the following quotes:

    “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

    “In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

    ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.’

    Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. ”

    Both from Lawrence v. Texas, 539 U.S. 558 (2003). These are not the words of some mealy-mouthed shrinking violet who feels the need to compulsively engage in constitutional half-steps.

  9. Jon Rowe says:

    TWC: Your question may be one for the Volokh’s. I am an attorney and law professor at the community college level; but they are far more learned and able than I on a technical level.

    The way I understand constitutional law, SCOTUS Justices have a great deal of power in establishing broad or narrow holdings and have all sorts of devices at their hand some substantive, some procedural for doing things like this. Look at the way they punted on procedural grounds on the Michael Newdow case. They didn’t have to do that.

    It’s true they can always say “you didn’t raise or brief this issue, therefore we won’t decide it”; but I don’t see any restriction in their ability to “slip” something like that in when Justice Kennedy attempts to “split the baby.”

    He could hand blatant victory to one side or the other; but I see nothing that would prevent him from “slipping” in a constitutionized right to civil unions that grants all the rights of marriage under the federal Constitution.

    This differs from what gays have in Cali., because even though their same sex civil union gives them all STATE rights and privileges, gays currently do not have equality with regards to federal rights.

  10. Jon Rowe says:


    That’s a good point and you may be right. Justice Kennedy may well write the decision that gives us a constitutional right to SSM. Somehow though, I just don’t see him as being as much on the vanguard of this issues as the more left wing justices are.

  11. JeffatGZG says:

    I’d take it one step further, and declare that the State shall ONLY recognize a civil contract, regardless of sexual orientation – doing away with the term “marriage” in any license or declaration issued by the government. You must declare your intention to form a union and be granted certification by the state. That civil contract carries all the rights and legal authority currently afforded to current state-issued “marriage” licenses, and would be recognized nationwide with reciprocity in ALL states. Once you do that, if you choose to do so, you can have a “marriage” ceremony performed and sanctioned by the church of your choice, if the denomination you choose sanctions marriage regardless of sexual orientation (and there are many that do).

    Government controls the legal aspects of forming a union, and let the chuech sanction “marriage”. Remove the word “marriage” from Government control and the issue should be resolved without the threat of “forcing” any church to compromise their so-called “moral values”.

  12. B-Rob says:

    The Supreme Court could also decline to hear the case. What you have is one court interpreting the U.S. Constitution vis a state constitutional clause. The don’t HAVE to take this case, especially if, as it appears, the proponants of the clause did such a piss-poor job articulating the stated rational basis for the clause. A person opposed to gay marriage MIGHT under the circumstances just decide to let it stand and wait for the next case, like the Massachusetts DOMA case, to reverse the legal determination that same-sex marriage is a constitutional right.

  13. Jon Rowe says:

    They always could wait for the next case; but SCOTUS loaths Circuit splits where the US Constitution in one jurisdiction means X and not X in another.

  14. Jon Rowe says:


    One other thought. I think Kennedy and others understand there is a difference between no sodomy laws, excluding gays from anti-discrimination protection and marriage. There were backlashes from the first two; but the possibilities for backlash from the third (given the number of states that DON’T recognize SSM) are far greater.

    They took this into account with the Newdow ruling. Yet they know the country as a whole probably wouldn’t care too much if gays got equal rights w/o the name “marriage.” It’s possible that not only would Kennedy opt for splitting the baby, but that one or two of the liberals would defect and join him.

  15. What about Sotomayor? Do we really know how she’d vote?

  16. Mark F. says:

    The “civil unions” thing seems like an obvious compromise to me. I don’t know why people should feel insulted that their relationship is not recognized by the government as a “marriage” if they have all of the rights and responsibilities of marriage. Of course, the distinction is silly, but why let it stand in the way of progress for gay couples?

    On a related issue: The “seperate but equal” black schools were not really equal, but the court instead spouted the nonsense that “seperate is inherently unequal” in Brown (Jon’s point about seperate but equal restrooms is well taken), and actually supported racism when it claimed that black kids needed to sit next to white kids to learn better. (I’m not saying that forced racial segregation was not racist and unconstitutional, but the court’s reasoning left much to be desired.)

  17. Hunter says:

    Mark F:

    It’s been demonstrated quite unequivocally in several arenas that the word “marriage” itself carries social meaning. That meaning was a factor in Goodridge as well as Perry, and there’s ample social science research to support it. Also, New Jersey found that civil unions are not equal to marriage (although the legislature ducked with faced with the necessity to fix their law); Vermont, the first state to grant civil unions, found them inherently unequal and changed its law to allow same-sex marriage.

    It’s not a “silly” distinction at all.

  18. Pingback: Box Turtle Bulletin » Brown or Plessy?

  19. Matt says:


    Kennedy wrote the majority opinion on a similar case in Romer v. Evans in ’96, that overturned Colorado’s Amendment 2, a people-passed amendment to CO’s constitution that had made it illegal for any municipality in the state to consider glbt citizens as a “suspect class”. This case is pretty similar to Perry, so I don’t understand why you believe that Kennedy would reverse his own ruling after a relatively short span of time.

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