Gay marriage ruling

The Supreme Court's decision

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  • Chris Wilson, Yahoo News| 11:51 a.m. ET

    Geof is, of course, the editor of the 15-volume series "Inalienable Rights." Can I get that on Amazon?

  • Douglas NeJaime| 11:51 a.m. ET

    Thanks for including me.

  • Geof Stone| 11:51 a.m. ET

    My pleasure. Thanks for inviting me.

  • Chris Wilson, Yahoo News| 11:50 a.m. ET

    Alright, that's a wrap for today. Major thanks to Geof Stone and Douglas NeJaime.

  • Geof Stone| 11:50 a.m. ET

    I never noticed, but the absence of "respectfully" is almost surely intentional, especially given the nasty tone of his opinion.

  • Chris Wilson, Yahoo News| 11:47 a.m. ET

    Or is that just his style?

  • Chris Wilson, Yahoo News| 11:47 a.m. ET

    Scalia merely wrote "I dissent" in the DOMA case, sans "respectfully." Is that significant? I remember Ginsburg doing the same in Bush v Gore.

  • Douglas NeJaime| 11:47 a.m. ET

    I agree with Geof.

  • Geof Stone| 11:45 a.m. ET

    I think the DOMA decision lays the foundation for future decisions guaranteeing the right of same-sex couples to marry, but probably not as soon as next year.

  • Douglas NeJaime| 11:45 a.m. ET

    Likely not. In the Nevada case (Sevcik), the state is defending. (Though the Hawaii case presents some issues similar to Perry.) And we will likely see additional challenges in other states where state officials are eager to defend their state bans. Those cases could arrive at the Court in a couple years.

  • Chris Wilson, Yahoo News| 11:44 a.m. ET

    And are opinions like the Prop 8 case meant to telegraph messages to petitioners about what they can expect the Court to decide on?

  • Chris Wilson, Yahoo News| 11:43 a.m. ET

    Do you think these cases will have the same issues of standing?

  • Douglas NeJaime| 11:42 a.m. ET

    We can expect more cert petitions relating to same-sex marriage. More cases are coming...

  • Chris Wilson, Yahoo News| 11:42 a.m. ET

    any predictions for that term?

  • Geof Stone| 11:42 a.m. ET

    Certainly for next Term.

  • Chris Wilson, Yahoo News| 11:41 a.m. ET

    In the remaining few minutes here, do we expect the same nine justices to be back for a new season?

  • Douglas NeJaime| 11:36 a.m. ET

    Kennedy is sympathetic to the formal equality claims of lesbians and gay men. The timing of the LGBT rights movement -- still searching for formal equality -- helps to explain why Kennedy aligns himself with the more liberal Justices in gay rights cases, even though they have more substantive, capacious views of equality.

  • Geof Stone| 11:35 a.m. ET

    In both the VRA decision and the DOMA decision, Kennedy voted to invalidate a federal law. One was right, the other wrong. The difference is that there is every reason to be skeptical about laws that discriminate against gays and lesbians, because they have been subjected to a long history of discrimination. There is no reason to be skeptical about laws that enforce the Fifteenth Amendment's prohibition on racial discrimination in voting.

  • Chris Wilson, Yahoo News| 11:29 a.m. ET

    Are there any notable inconsistencies between Kennedy yesterday on VRA and today?

  • Geof Stone| 11:29 a.m. ET

    What we learned about the Roberts Court is what we already knew. It has four extremely conservative justices, four cautiously liberal justices, and Justice Kennedy, who votes 75% of the time with the conservatives, but occasionally otherwise.

  • Rachel Hartman, Y! News| 11:28 a.m. ET

    From John Boehner on DOMA only: “Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law. The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally. While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances. A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”

  • Geof Stone| 11:27 a.m. ET

    In some ways, today's DOMA decision is reminiscent of an earlier Supreme Court decision on discrimination against women. In the early 1970s, the Court for the first time invalidated a law that discriminated against women, but in so doing it said the law was "irrational." Like Kennedy's opinion today, the judgment that that law was irrational was a bit of a stretch. But that case laid the foundation for subsequent decisions that laws discriminating against women are presumptively unconstitutional. Hopefully, history will repeat itself.

  • Chris Wilson, Yahoo News| 11:26 a.m. ET

    So with the season at a close, what did we learn about the Roberts Court this term?

  • Rachel Hartman, Y! News| 11:25 a.m. ET

    Chris: The White House is definitely pleased. Viewers of MSNBC actually just watched the president (from AF1) call one of the plaintiff's cell phones to congratulate them.

  • Geof Stone| 11:24 a.m. ET

    On the other hand, four justices -- Roberts, Scalia, Thomas and Alito unequivocally made clear in the DOMA case that, in their view, the states can constitutionally refuse to recognize same-sex marriages.

  • Douglas NeJaime| 11:22 a.m. ET

    The Court has not said that state bans are constitutional; it simply has not decided the question. In DOMA, the Court decided that the federal prohibition was unconstitutional. While federalism principles informed the analysis, the logic of equality and liberty used by Kennedy could also eventually form the basis for a decision finding state bans unconstitutional.

  • Chris Wilson, Yahoo News| 11:21 a.m. ET

    Meanwhile, Rachel: We've seen the president's message of support for the DOMA decision. Do you think the White House will be satisfied with Prop 8?

  • Liz Goodwin, Y! News| 11:20 a.m. ET

    Can you guys explain a little bit why the Supreme Court can say it's legal for a state to ban gay marriage but illegal for the federal government not to recognize same-sex marriages?

  • Rachel Hartman, Y! News| 11:20 a.m. ET

    And here's Michele Bachmann's response: Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted. For thousands of years of recorded human history, no society has defended the legal standard of marriage as anything other than between man and woman. Only since 2000 have we seen a redefinition of this foundational unit of society in various nations. Today, the U.S. Supreme Court decided to join the trend, despite the clear will of the people’s representatives through DOMA. What the Court has done will undermine the best interest of children and the best interests of the United States."

  • Douglas NeJaime| 11:16 a.m. ET

    Scalia is situating this case as merely a stop along the way to recognizing same-sex couples' right to marry more broadly. Lawrence recognized same-sex couples' right to intimate relationships, Windsor recognizes their right to federal recognition of valid state-law marriages, and ... another case will have to wade into the substance of state marriage restrictions. Even though Roberts tries to limit Kennedy's reasoning to DOMA -- a federal law -- Scalia is arguing that it is simply a matter of time.

  • Chris Wilson, Yahoo News| 11:09 a.m. ET

    Aside from the rather snide characterization of the Lawrence ruling, what is Scalia getting at here?

  • Rachel Hartman, Y! News| 11:09 a.m. ET

    Prop 8 defenders at the mics right now saying that today's ruling "has completely nullified the 9th Circuit ruling of Prop 8" and that there is now no appellate court decision invalidating prop 8. Can one of our experts expound on that and where prop 8 defenders go from here?

  • Chris Wilson, Yahoo News| 11:09 a.m. ET

    Question on that: In DOMA dissent, Scalia says: "When the Court declared a constitutional right to homosexual sodomy [in Lawrence], we were assured that the case had nothing, nothing at all to do with 'whether the government must give formal recognition to any relationship that homosexual persons seek to enter.'"

  • Douglas NeJaime| 11:09 a.m. ET

    There are cases in the pipeline addressing state prohibitions on marriage for same-sex couples, including two others in the Ninth Circuit -- one challenging Hawaii's law and the other challenging Nevada's. It will be interesting to see how long the Court can avoid this question.

  • Douglas NeJaime| 11:08 a.m. ET

    Me, too.

  • Geof Stone| 11:08 a.m. ET

    I'm in.

  • Douglas NeJaime| 11:07 a.m. ET

    Justice Scalia had argued in his dissent in Lawrence that the the majority in that case was laying the foundation for the issue of same-sex marriage. Now, ten years later, the principles of equal dignity and liberty articulated in Lawrence support the majority's holding on DOMA's unconstitutionality.

  • Chris Wilson, Yahoo News| 11:07 a.m. ET

    Gotcha, thx. Geof and Douglas, looks like we'll need you to stay in this chat continuously for the next several years. Are you free?

  • Liz Goodwin, Y! News| 11:06 a.m. ET

    We can definitely expect to see more lawsuits.

  • Liz Goodwin, Y! News| 11:06 a.m. ET

    Chris, there's some debate on that:

  • Chris Wilson, Yahoo News| 11:04 a.m. ET

    The word "Lawrence" shows up eight times in the DOMA opinion.

  • Rachel Hartman, Y! News| 11:03 a.m. ET

    Prop 8 plaintiff Paul Katami just participated in a press conference outside the court. "We will continue the fight until all of us are equal," he said. "Prop 8… helped us turn anger into action" "It's the day I finally get to look at the man I love and say 'will you please marry me?'"

  • Douglas NeJaime| 11:02 a.m. ET

    Ten years to the day that the Court struck down criminal prohibitions on same-sex sex, the Court strikes down Section 3 of DOMA. In doing so, Justice Kennedy recognized the connection between Lawrence and his decision in WIndsor.

  • Chris Wilson, Yahoo News| 11:02 a.m. ET

    (I guess technically I'd only be able to be half of said couple.)

  • Chris Wilson, Yahoo News| 11:02 a.m. ET

    Good questions from Thomas and Ryan. If I'm a married same-sex couple from, say, Washington D.C. or Massachusetts, how does my life change today?

  • Chris Wilson, Yahoo News| 11:01 a.m. ET

    Welcome, Douglas.

  • Comment from Thomas Wells| 11:01 a.m. ET

    Agreed with Ryan. What about states options to recognize same sex marriages performed elsewhere? Interstate commerce?

  • Liz Goodwin, Y! News| 11:00 a.m. ET

    Douglas NeJaime, a law professor at Loyola Law School, has joined us as well.

  • Geof Stone| 11:00 a.m. ET

    The decision does not address that question.

  • Comment from Ryan| 10:57 a.m. ET

    Any word if the DOMA decision addresses state's options to recognize same-sex marriages performed elsewhere?


June 26, 2013

Supreme Court Justices rule on gay marriage

What's the aftermath of the SCOTUS ruling?
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