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Ted Cruz

7 (6.5%)

Rick Santorum

16 (14.8%)

Michelle Bachmann

13 (12%)

Chris Christie

23 (21.3%)

Rand Paul

49 (45.4%)

Total Members Voted: 107

[Nadaka]

Or they could split down party lines and the conservatives win 5/4.

Not at all going to happen. Roberts' comments have already established that he desires at least a limited recognition of equality. This leaves the conservative justices without a fifth vote.

1: limited equality is not equality.
2: i just don't trust the system enough that they will do the right thing on a predictable basis. I give it only a 50/50 probability, and that might be optimistic.

[MetalSlimeHunt]

1: limited equality is not equality.

I didn't say limited equality, I said a limited recognition of it, ala upholding the Ninth District without setting a national precedent.

[Scoops Novel]

1: limited equality is not equality.

I didn't say limited equality, I said a limited recognition of it, ala upholding the Ninth District without setting a national precedent.

Could you clarify for the non-american audiences? Is this something on the lines of gerrymandering?

[MetalSlimeHunt]

1: limited equality is not equality.

I didn't say limited equality, I said a limited recognition of it, ala upholding the Ninth District without setting a national precedent.

Could you clarify for the non-american audiences? Is this something on the lines of gerrymandering?

No, Novel. I don't know how you possibly could have gotten gerrymandering out of that. The Ninth District is the judicial district on the West Coast, who oversaw the case that lead to this.

[misko27]

It's simple. They could decide the case on a limited basis relating strictly to the lower courts decision, denying a chance to have the case be ntional policy,

[Nadaka]

It's simple. They could decide the case on a limited basis relating strictly to the lower courts decision, denying a chance to have the case be ntional policy,

And that is still a defeat of national right to marry.

[palsch]

I'll just quote myself from the progressive thread back when the arguments were made;

So the Prop 8 arguments happened. Early thoughts.

There are quite a few possible outcomes possible from this case. After oral arguments some of them seem much less likely. Note I'm going on very limited information as I haven't had time to read or listen to the full arguments yet.

1) Prop 8 upheld.
This seems extremely unlikely now. You definitely have two to four of the conservative justices taking this position, but it looks unlikely that they could get 5 votes. Kennedy all but ruled it out. I'd be shocked if this happened.

2) The court finds finds that those defending Prop 8 don't have standing and the case is thrown out.
This would have similar effects to 3 except removing adding a reset button to the legal process. Prop 8 would remain gone, but it would be possible for someone who did have standing to bring a new case in the future. The suggested example would be a state employee refusing to recognise same-sex marriage in their work. This seemed to be Robert's strategy, but looks near impossible now as both Kennedy and Alito argued strongly that the defendants did have standing otherwise unpopular ballot initiatives could never be defended in court. About as likely as an upholding now.

3) The court explicitly upholds the Californian ruling.
The ruling out of the District Court was a strange one. They essentially ruled that Prop 8 was illegal because it removed a right that had previously been granted. It didn't say that there is an inherent right to gay marriage in the constitution, just that once such a right has been extended to a group it can't be removed again. At least in part it looked like a strategic option to allow the Supreme Court to strike down Prop 8 without expanding gay marriage to all states. In my opinion the legal side was a stretch (is stripping a right briefly granted really that different from denying it outright?) and it almost looked too strategic and targeted towards Kennedy, who openly attacked it during arguments. I very much doubt this will happen. Even if it did, it wouldn't have much legal effect elsewhere, beyond making it impossible for states to remove gay marriage once granted.

4) The court dismisses the case entirely.
This seems entirely possible now given Kennedy's words. The effect would be pretty much identical to 3, except that the Californian ruling would have no legitimacy outside California, meaning that other states that tried to repeal a gay marriage law wouldn't be blocked by that ruling. Not that that is ever likely to matter. Right now this is where the smart money is going.

5) The court strike down gay marriage bans based on the administration's logic.
Essentially the administration argued that having 'separate but equal' civil unions is unlawful, and any state that discriminates in that way must allow gay marriage. Essentially all civil union states become gay marriage states, but those states without such unions can keep gay marriage illegal. The lack of any recognition of gay couples would become a matter for future cases. I don't think anyone was buying this, ever.

6) Prop 8 struck down because gay marriage is found to be a right.
This means gay marriage becomes legal in all states. Always seemed a little unlikely to me. The liberal justices definitely indicated they support this, with all four making comments in this direction. Kennedy made some statements that have been taken as opposition to this, but the quoted ones are not definitive and who knows what will happen. I still think it's a long shot.

As far as outcomes go, 1 would be the bad end. 2 is the good end but with a hint the end boss isn't truly dead. 3 and 4 are the good end. 5 is the surreal good ending you have to work hard for, is a lot of fun to watch but leaves half the people who get it incredibly confused. 6 is the rainbows and unicorns, we're all Californians now party time ending. Again, right now the smart money is on 4, but things aren't set in stone until the ruling is handed down.

[Leafsnail]

That's a pretty good summary of the prop 8 stuff.  My impression was that DOMA is likely to fall in the other case too.

[palsch]

And that is still a defeat of national right to marry.

A national right to marry is only indirectly the question here.

It's in the court's nature to decide the most narrow question they can for each case that comes up. If there is a way to decide a case without creating sweeping precedent effecting millions of people then the court is more likely to take that option than not. Only when the core of any given case is unavoidably entangled with a major constitutional question are you likely to see such major decisions made.

In this case there are a wealth of questions to be addressed before you get to the core question of a right to marry (or protected status for homosexuals) so it's most likely to be ignored. There is a chance it could be addressed, and most likely only in a positive manner, but it's incredibly foolish to look on any other decision as a defeat.

My impression was that DOMA is likely to fall in the other case too.

Looks likely, but what ground it's struck down is less certain and potentially more important. It looks most likely to go on a state's rights argument; that the federal government doesn't have the power to define marriage and that that right is reserved to the states. Which is all true. But isn't anywhere near the ideal decision based on the Fifth Amendment. There is even an argument that it is a harmful path to take.

[Loud Whispers]

'The President is authorized by the
Constitution and laws of the United
States to employ the Armed Forces of
the United States to suppress
insurrections, rebellions, and domestic
violence under various conditions and
circumstances.'

This is critical levels of fucked up.

[SalmonGod]

As noted in the article on this I posted in the Occupy thread, the major alteration to existing law here is the addition of allowing for use of the military to deal with "civil disturbances", which, like terrorism, could mean absolutely anything they want it to.  An Occupy encampment could be a civil disturbance.

[Loud Whispers]

And on orders of the President, with no constitutional or congressional authorization required.

[Max White]

That party across the street is getting pretty noisy, better call the military!

[SalmonGod]

And on orders of the President, with no constitutional or congressional authorization required.

Actually...

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.

One of the more disturbing aspects of the new procedures that govern military command on the ground in the event of a civil disturbance relates to authority. Not only does it fail to define what circumstances would be so severe that the president’s authorization is “impossible,” it grants full presidential authority to “Federal military commanders.” According to the defense official, a commander is defined as follows: “Somebody who’s in the position of command, has the title commander. And most of the time they are centrally selected by a board, they’ve gone through additional schooling to exercise command authority.”

As it is written, this “commander” has the same power to authorize military force as the president in the event the president is somehow unable to access a telephone. (The rule doesn’t address the statutory chain of authority that already exists in the event a sitting president is unavailable.) In doing so, this commander must exercise judgment in determining what constitutes, “wanton destruction of property,” “adequate protection for Federal property,” “domestic violence,” or “conspiracy that hinders the execution of State or Federal law,” as these are the circumstances that might be considered an “emergency.”

[Sheb]

Wouldn't this be forbidden under the Posse Comitatus Act?