Up   |  March 24, 2013

How SCOTUS might rule in same-sex marriage cases

The Up with Chris Hayes panelists look at each of the Supreme Court justices and dissect the possible outcomes from oral arguments over Prop 8 and DOMA.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> scene, your late husband, gerry studds , you were talking about him on the into. it was very powerful.

>> i have paid every single penny as much as every member of this house has for that pension. my partner, should he survive me is not entitled to one penny. i don't think that's fair, mr. speaker. i don't think most americans think that is fair. and that is really what the second section of this bill is about. to make sure we continue that unfairness.

>> unfairness and that in-law. the doma case we just mentioned, will is -- i think, more of a sense that it is -- it has better shot before the court . prop 8 case is a little more complicated. were is the prop 8 case more complicated? why is there less of the confidence about when the court will do will?

>> well, there are a number of way it is prop 8 case could come down. it could result in a ruling that requires all states around the country to issue marriage licenses to same-sex couples or could do something more limited.

>> the would be a very big deal . this would be a declaration by the court that it is -- marriage is a constitutional right. that would essentially be what the declaration is. right? it is unconstitutional to discriminate on the basis of sexual orientation in the provision of the institution of marriage.

>> absolutely. it can do so on equality or liberty principles. it could decide either it is a fundamental right to marry for all of us regardless of sexual orientation around the country or decide as a matter of quality of principles that all marriage -- must be struck down or more limited. it could do something along the lines of the 9th circuit held which applies in a very direct sense. exclusively to california . and pointing out that there is something novel here that the -- state of california determined it was fundamental right under the state constitution for same-sex couples to marry and then the people of california by a very narrow margin and proposition 8 chose to take that fundamental right. not from everybody.

>> bunch of people who after the supreme court says you can get married a bunch of people get married, as you were married. you, massachusetts, other states, you married. and now then after that, the state comes in and basically says no, no, you are not married. you were married and now through this bizarre reversed process we turn you presto into not married.

>> not exactly what happened. so -- the people who got married during the time when marriages were allowed in california and then the moment prop 8 was enacted, those marriages are still valid under california law . you have an odd limbo. 18,000 couples that are still married. but there is month gay marriage going forward from proposition 8 . from november 2008 forward there is no gay marriage in california . this sort of odd legal limbo. there are avenues you can take. one is to think of this as a california moment and think about the idea of taking back rights that have already been conferred.

>> we compare it to abortion earlier. if we get that sort of decision that imposes using brown --

>> the roe v. wade of marriage.

>> i would like that. i would like marriage rights to be extended to all same-sex couples in all 50 states . it may have to be done by the supreme court just as interracial couples were allowed to marry. the backlash against that will be staggering and so -- in some ways that is what i most hope for that decision and most fear.

>> that's inning. it would be a roe v. wade moment.

>> i think we should be looking at ruth bader ginsburg . although she is progressive on social values, she is a conservative in terms of her view of the court 's institutional role. in a lecture at nyu in the 1990s she was very critical and said there was a moment stuff going on the ground about lib rlizing abortion and the court intervened and this moment about prompted this wave of backlashes for the next 40 years.

>> what's also interest being the ginsburg history rise she herself is a litigator who is bringing civil rights equality cases on issues of sex discrimination against women. sometimes sex discrimination against men which is a litigation strategy is her litigation strategy was incredibly narrow. she would find these sort of narrow slivered cases and bring them boom, boom, boom, before the court . and has this kind of philosophy that you don't want these big sweeping kind of moments.

>> well, in some way that's what the doma case, defense of marriage act in that the edie windsor case, defensive marriage case, only recognize same-sex marriages in states they are already legal because of state laws and those individuals would be treated the same as all other married couples in that state that would not be second class marriages. i think that -- that -- some people say, well, we need to deal with marriage or they -- even gay people don't want to get married yet. maybe it is because it is -- in name only there are no benefits really attached to it that -- when we got married i knew that we were married but for federal purposes and anything dealing with inheritance, taxes, you know, we don't have any children but all of the kind of family law issues we were still treated as second class citizens and same -- no, you are not married.

>> point here beinging that striking down doma would be massively transformational. short of the kind of constitutional moment that may come.

>> hundreds of thousands much people in the country that are hurt right now and married.

>> dean is putting his finger a common thread for both cases. in many is expect, both of these cases are not so much about marriage as they are about affirming human dignity and equality. and --

>> you are speaking right to anthony kennedy at this moment, aren't you?

>> some of the people that are most affected when you strike down marriage ban and affirm equality of everyone in a particular state, for example, are the kids. gay kids. who may have no desire to more write. not even thinking about relationships at that point but who are being told by their families, by their churches and kids in their schools, that there something wrong with them. that they can never aspire to the same kind of family as everybody else .

>> can we talk about what the possibilities are should -- specifically when you -- i cut you off before when you were talking about the court doing something like what the 9th circuit did which is short of this sweeping decision what a would that look like?

>> it would limit the force of the ruling to california . there would be same-sex marriage and there would be same-sex in the other states that permit it. it wouldn't be the kind of sweeping decision like loving versus virginia. interestingly, though, it is a great parallel to sort of think about. loving versus virginia comes in 1967 . 1 years after the court decides brown versus board of education which was the seminal decision dealing with race discrimination . immediately after brown there is another case in the supreme court , maim versus name. same issue. racial discrimination in the context of marriage. the court punts. it doesn't take that case. because it knows that it is a divisive issue even as we have gotten to immigration and public schools we haven't gotten there in the bedrooms. the court says we are going to punt and wait 13 years before deciding.

>> it i want to talk about marriage more broadly and what its significance is legally.