How will the Supreme Court rule on gay marriage?

As I wrote last week, the Supreme Court has decided to hear two cases on gay marriage. SCOTUS will likely hear oral arguments in March and render a decision on the matter by June. Everyone is speculating at this point about how the court will rule. Gay marriage advocates are feeling the wind at their backs, and many of them are expecting a decision favorable to their cause. They may very well be right, and gay marriage may be the law of the land by the beginning of next summer.

It’s difficult at this point to predict which outcome is most likely. But Joe Carter has done a fantastic job of summarizing what outcomes are possible. Speaking of the court’s options on Proposition 8, Carter says that the Court has four options. Here they are:

1. Overturn the 9th Circuit ruling and uphold Prop. 8. This outcome would leave the definition of marriage to the individual states and its voters.

2. Uphold the 9th Circuit ruling, but do so in a way that limits the ruling to California’s Prop. 8 legislation.

3. Dismiss the appeal on the grounds that the sponsors of Proposition. 8 had no legal standing to defend it in court. This outcome would prevent the Supreme Court from ruling on the merits of the case. It would also leave the outcome of the legislation unclear since it would also vacate the 9th Circuit’s ruling.

4. Issue a broad ruling that homosexuals have a Constitutional right to marry someone of the same sex. This outcome would strike down the bans on such marriages in 39 states. While many gay rights advocates prefer this choice, others are concerned that such an act of judicial activism would lead to a backlash similar to the Roe v. Wade decision.

Options 2 and 4 would both be victories for advocates of gay marriage. Option 2 would legalize gay marriage in the nation’s most populous state. Option 4 would declare a constitutional right to gay marriage for all fifty states. In either scenario, gay marriage would achieve a significant victory.

Option number one is the status quo option. Marriage law would still be decided by the states, nine of which have already legalized gay marriage (plus the District of Columbia). This seems to be the best possibility for traditional marriage advocates.

What is notable here is that none of these options would constrict or eliminate legal gay marriage anywhere it already exists today. At best, we get the status quo of gay marriage becoming legal incrementally on a state-by-state basis. At worst, we get gay marriage made legal all at once in every state of the union.

2 Responses to How will the Supreme Court rule on gay marriage?

  1. Paul Abella December 13, 2012 at 4:31 pm #

    I think it all depends on which Clarence Thomas and which John Roberts show up to work that day. Both have libertarian streaks, and it’s not implausible to think that they’d side with the liberals on the court. But, if I were a betting man, Kennedy votes to overturn the appeal.

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  1. Supreme Court Will Rule on Gay Marriage | Alex Chediak - December 11, 2012

    […] Update: Joe Carter summarizes the possible outcomes of these two cases. (HT: Denny Burk) […]

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