By now if you have not heard about the two cases affecting gay marriage which were heard by the SCOTUS then you have no Facebook and have lived under a rock. Let’s cut to the chase, here are my predictions (f you want to know my reasons then read the rest of the column):
Prop 8: the court will be very conservative the decision will have the effect of allow gay marriages in California only.
DOMA: The Supreme Court will find that Federal Government has no legal basis to make a distinction between gay and hetero marriages and thus invalidate the part of the law that forbids federal government to recognize gay marriages.
What the court will NOT do is find that there is a fundamental right that protects gay marriages and thus all states must recognize or adopt gay marriage.
These results may not be what we are asking for however they are huge steps toward full recognition.
Traditionally (rooted in constitutional law) the federal government has allowed States to dictate laws in certain areas. One such example is marriage. That is why it is possible that each state has slightly different marriage laws, for example the way a divorce is conducted. With this in mind I believe that DOMA will be invalidated. The reasoning goes like this: Massachusetts has dully enacted law that defines marriage as including same sex couples therefore the federal government must respect that state’s right to do so and failure to recognize such marriages for purposes of federal law would undermine the states right to define marriage. This is very likely to be the reason why DOMA will go down in history as unconstitutional because it violates each states right to define marriage as they wish.
The more difficult law to predict is Proposition 8. Not only is it difficult to predict how the justices will decide but, also what rationale they will use. But, I am still predicting that the result will be that gay marriages will be available in California, come this fall.
My prediction though is that the court will decide that it is not proper for SCOTUS to decide on this case. This would be a technical maneuver based on procedural rules. Simply put the Court may say that those defending the law did not have a right to do so and therefore it is not proper for them to hear the case. If they make such a ruling then the decision of the last court (Ninth Circuit) will stand. That court found that Proposition 8 was unconstitutional as it affected gay people living in California only. So that gives us the result I mentioned already.
Now the even more difficult prediction of how each justice is going to vote. Scalia, Alito and Thomas will both vote against anything that would allow gay marriage in any form. Not because of legal reasoning but because they have indicated they are very much against gay marriage even before the hearings were held. Then there is the obvious “for” gay marriage votes: Sotomayor, Kagan and Ginsburg and Breyer. Now remember any decision requires at least five votes. Therefore the deciding justices will be the swing votes of Roberts and Kennedy.
Kennedy has been cast as the consistent swing vote, the deciding vote in recent years. He seems more against DOMA than Proposition 8. That is why it is easier to predict DOMA. But since DOMA suffers from one huge flaw, that it intrudes on states right to determine laws of marriage it is very possible that Chief Justice Roberts will also strike down DOMA. Traditionally conservative justices, such as Roberts, have gone to great lengths to protect states from federal government intruding. It is odd that in the case of DOMA the conservative justices are okay with states being dictated by federal law. But I think that Roberts is smart enough to know that this is his legacy, after all he is the chief justice and history is being written as we speak. He sees the writing on the wall and will not want to be cast as falling on the wrong side of history. DOMA will likely go down 6 to 3.
Proposition 8 is harder to predict. Again the ultra conservative and ultra liberal will vote the same. Again, leaving Kennedy and Roberts to decide. I think the vote will be whether or not SCOTUS should hear the case or not. It will not be whether proposition 8 was properly passed or not or whether it violates gay citizens constitutional rights. In that case it is conceivable that Justice Roberts will like to appease the conservatives and say that it is proper for the court to hear. Kennedy on the other hand will say that it is not. Prop 8 will go down on a 5 to 4 vote.
Now let’s wait until sometime this summer to see how accurate my predictions are.
