stowe1
Ye Olde Curmudgeon
The Supreme Court announced that it has added two non-argument sessions for the announcement of Opinions to its calendar. They are Thursday, 6/25 and Friday, 6/26. These are in addition to its regularly scheduled orders and opinion day on Monday, 6/29. All sessions will begin at 10 am EDT. On one of these days, the Court will announce its decision on marriage equality. The two most significant decisions left to be announced are the marriage equality case and the Obamacare case.
I'm guessing the Obamacare decision will be announced first. While it does affect millions of people, it does not have the kind of constitutional and societal significance on the country as a whole as does the marriage equality decision. And the Court usually likes to save that kind of decision to its last. But whether it announces it on the 26th or 29th, how ironic and truly fitting because it is the anniversary of the Stonewall rebellion.
I am a "hope for the best/prepare for the worse" person. That instinct has served me well both in my personal life and business career. Here's what I hope: a 9-0 decision affirming that same sex marriage is a right protected by the 14th Amendment of the Constitution. Well, we know that's not going to happen. No way Scalia and Thomas would ever vote that. Now in the 1954 Brown v. Board of Education case nobody thought that would ever be 9-0 either, but it was. The primary reason for that was Chief Justice Earl Warren's intense behind the scenes lobbying of the reluctant Justices. We don't have that in this case. Even if the Chief were to support marriage equality he would not have the sway to convince the likes of Scalia or Thomas. I envision two possible scenarios:
1. If the vote is 5-4 that means Kennedy stuck with his record of support for gay rights and voted with Breyer, Kagan, Ginsburg, and Sottomayer. And he writes the main opinion. The question is does his opinion go the whole way and affirm constitutional protection for same sex marriage? This is where my pessimistic side comes in. Reading the transcripts and listening to the audio of the case being argued before the Court in April, I just have a nagging feeling that Kennedy will stop short of saying it is a constitutional right. I hope I'm wrong because if it is found to be a constitutional right, that would obviate a lot of legislative and legal maneuvering which would occur to get around a decision which finds it legal but not constitutionally protected.
2. The vote is 6-3 with Roberts joining the aforementioned 5. I would love this outcome if it would mean that Roberts has seen the light and supports marriage equality as constitutionally protected. In a case where the Chief is in the majority, he assigns the Justice who writes the main decision and he can assign it to himself. And that's what I fear. He writes a decision that limits as strictly as possible the circumstances where same sex marriage is legal but not protected by the 14th amendment. That type of decision would create chaos among the citizenry and a field day for legislators and lawyers.
The one scenario which I don't anticipate is that the court would find 5-4 that same sex marriage is not protected by the 14th amendment and should be left up to the states; or worse that it is illegal. That would mean that Kennedy breaks from his longtime support of gay rights cases and I just can't see him doing that. While I think our side during argument of the case was superior to the opponents, we should have had better representation. Nothing against the lawyer who argued for us, but she had never argued before the court before. I had advocated Boies & Olsen who have argued before the court several times including the Prop 8 case. There were a few instances where Kennedy asked questions and I got the impression he wasn't all that satisfied with our answers. I don't think to the point of voting against us, but maybe enough to stop short of granting full protection of the 14th amendment to same sex marriage. Time will tell.
If the case is decided in our favor, i.e. that same sex marriage is a legal civil right protected by the 14th Amendment of the U.S. Constitution, and the decision is announced on the 26th or 29th what a fitting tribute to the Drag Queens and others who stood their ground and said enough is enough and sparked a revolution. If the decision is anything less, then all of us have a responsibility to those people to continue the struggle until our civil rights are fully realized.
I'm guessing the Obamacare decision will be announced first. While it does affect millions of people, it does not have the kind of constitutional and societal significance on the country as a whole as does the marriage equality decision. And the Court usually likes to save that kind of decision to its last. But whether it announces it on the 26th or 29th, how ironic and truly fitting because it is the anniversary of the Stonewall rebellion.
I am a "hope for the best/prepare for the worse" person. That instinct has served me well both in my personal life and business career. Here's what I hope: a 9-0 decision affirming that same sex marriage is a right protected by the 14th Amendment of the Constitution. Well, we know that's not going to happen. No way Scalia and Thomas would ever vote that. Now in the 1954 Brown v. Board of Education case nobody thought that would ever be 9-0 either, but it was. The primary reason for that was Chief Justice Earl Warren's intense behind the scenes lobbying of the reluctant Justices. We don't have that in this case. Even if the Chief were to support marriage equality he would not have the sway to convince the likes of Scalia or Thomas. I envision two possible scenarios:
1. If the vote is 5-4 that means Kennedy stuck with his record of support for gay rights and voted with Breyer, Kagan, Ginsburg, and Sottomayer. And he writes the main opinion. The question is does his opinion go the whole way and affirm constitutional protection for same sex marriage? This is where my pessimistic side comes in. Reading the transcripts and listening to the audio of the case being argued before the Court in April, I just have a nagging feeling that Kennedy will stop short of saying it is a constitutional right. I hope I'm wrong because if it is found to be a constitutional right, that would obviate a lot of legislative and legal maneuvering which would occur to get around a decision which finds it legal but not constitutionally protected.
2. The vote is 6-3 with Roberts joining the aforementioned 5. I would love this outcome if it would mean that Roberts has seen the light and supports marriage equality as constitutionally protected. In a case where the Chief is in the majority, he assigns the Justice who writes the main decision and he can assign it to himself. And that's what I fear. He writes a decision that limits as strictly as possible the circumstances where same sex marriage is legal but not protected by the 14th amendment. That type of decision would create chaos among the citizenry and a field day for legislators and lawyers.
The one scenario which I don't anticipate is that the court would find 5-4 that same sex marriage is not protected by the 14th amendment and should be left up to the states; or worse that it is illegal. That would mean that Kennedy breaks from his longtime support of gay rights cases and I just can't see him doing that. While I think our side during argument of the case was superior to the opponents, we should have had better representation. Nothing against the lawyer who argued for us, but she had never argued before the court before. I had advocated Boies & Olsen who have argued before the court several times including the Prop 8 case. There were a few instances where Kennedy asked questions and I got the impression he wasn't all that satisfied with our answers. I don't think to the point of voting against us, but maybe enough to stop short of granting full protection of the 14th amendment to same sex marriage. Time will tell.
If the case is decided in our favor, i.e. that same sex marriage is a legal civil right protected by the 14th Amendment of the U.S. Constitution, and the decision is announced on the 26th or 29th what a fitting tribute to the Drag Queens and others who stood their ground and said enough is enough and sparked a revolution. If the decision is anything less, then all of us have a responsibility to those people to continue the struggle until our civil rights are fully realized.
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