Tribe Offers Predictions on Same-Sex Marriage Cases

May 10th, 2013

Larry Tribe–who as I discuss in Unprecedented was the *only* person who accurately and precisely predicted how John Roberts would vote in NFIB–offers some predictions of how the Court will resolve the DOMA and Prop 8 cases.

Regarding the pair of cases currently pending in the Supreme Court, my hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits notwithstanding the solid reasons to doubt that BLAG [Bipartisan Legal Advisory Group of the U.S. House of Representatives] is a proper representative of Congress and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.

As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.

There you have it.

Here are the current predictions on FantasySCOTUS.

For Prop 8

Hollingsworth v. Perry – Do Petitioners Have Standing? Affirm   69% Yes
Hollingsworth v. Perry – Does Prop 8 Violate the Equal Protection Clause? Affirm   73% Yes


United States v. Windsor – Does Counsel for House of Representatives have Standing? Affirm   78%-Yes
United States v. Windsor – Does DOMA violation the Equal Protection Component of the 5th Amendment or Federalism Principles? Affirm   83%-Yes
United States v. Windsor – Does SG’s agreement with 2nd Circuit deprive SCOTUS of jurisdiction? Affirm   78%-No

Tribe also offers some thoughts on a question that Justice Scalia posed– a question in which Ted Olson struggled to answer: when did a ban on same-sex marriage become unconstitutional.

On the one question of just when a ban on same-sex marriage “became” unconstitutional, however, my answer would be that, from a rather formal perspective, it was unconstitutional from the moment the Fourteenth Amendment was ratified although, from a more evolutionary and thus realistic perspective, it is still in the process of becoming unconstitutional in the sense that the constitutional status of challenged action is a function of an evolving partly political/cultural and partly legal development rather than something akin to the “fact of the matter.” Asking when this kind of ban “became” unconstitutional is like asking when the ban on interracial marriage “became” unconstitutional: the answer might be said to be 1967, when Loving v. Virginia was decided, but it also might be said to be 1868, when the Fourteenth Amendment was ratified. The question isn’t of the same metaphysical character as, e.g., the question of when the oceans of the earth were formed, or when the big bang occurred, or when George W. Bush became President of the United States.