Eastman Predicts SCOTUS Won’t Overturn Marriage Bans

John Eastman, former dean of the Chapman University School of Law and chairman of the board of the National Organization for Marriage, is nothing if not an eternal optimist. He tells OneNewsNow, the American Family Association’s “news” site, that the Supreme Court will not overturn state bans on same-sex marriage.

Even though the recent ruling found that traditional marriage is constitutional, Dr. John Eastman of the National Association of Marriage acknowledges that one judge alone can’t turn the tide.

“Obviously a single federal judge doesn’t outbalance other trial court judges or even the court of appeals,” says Eastman, an attorney who has argued before the U.S. Supreme Court.

But he argues that Feldman’s opinion mirrors that of the Supreme Court, which ordered a stay in a Utah marriage lawsuit that overturned the state’s traditional marriage laws.

“And they only do that when they think there’s a likelihood of success on the merits of the petition that they think officials will be filing,” Eastman advises.

Nonsense. The likelihood of success on the merits is the standard for issuing a preliminary injunction, not for issuing a stay of a lower court order. When a higher court is going to review a lower court’s decision, a stay is virtually automatic. The former dean of a law school should know this, and I’m sure Eastman does. Which means he’s just lying.

Eyeing an eventual case before the high court, the NAO spokesman predicts the high court will not “strike down thousands of years of history and the laws of 35 states, and say the Constitution, that doesn’t speak to this question, somehow mandated that every state redefine its institution of marriage.”

Would you care to make a wager on that prediction, Mr. Eastman? You name the amount.

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  • gshelley

    The Louisiana ruling made me even more confident that the Supreme Court will overturn the ban. I just can’t see Kennedy accepting the rational used in it. The seventh as well, as I’m not sure even Roberts or Alito will accept the “marriage is for procreation” argument from states that specifically allow cousin marriages only when procreation is not possible.

  • eric

    the recent ruling found that traditional marriage is constitutional

    Nice doublespeak there. That was really never the question, was it?

    the Constitution, that doesn’t speak to this question, somehow mandated that every state redefine its institution of marriage.”

    The 14th amendment is part of our Constitution. That’s what the amendments are, changes to the Constitution. And the Constitution doesn’t require any state to even have an institution of marrage. What it says is that if you have laws about marriage, they must apply equally to everyone.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    …which ordered a stay in a Utah marriage lawsuit that overturned the state’s traditional marriage laws.

    Thank goodness. My wives were all nervous about that one.

  • whheydt

    He also neatly sidesteps the issue of what will happen when the LA case gets to a appellate court. Granted, LA is in what I’ve seen claimed is one of the two most conservative circuits in the system, but at the very least one would expect the case to be sent back to the district court covered with red marks and a note saying, “Follow the rules of Civil Procedure.”

  • laplanck

    The likelihood of success on the merits is indeed considered when the Supreme Court evaluates whether to grant a stay pending certiorari, it’s just phrased differently:

    To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.

    Hollingsworth v. Perry, 553 U.S. 183, 189 (2010).

  • Cal

    My comment on that article was to ask if this optimism is the same as the type of math Republicans do to make themselves feel better…

  • scienceavenger

    …the high court will not strike down thousands hundreds of years of western history

    FTFY.

  • John Pieret

    laplank @ 5:

    (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari

    That’s a given.

    (2) a fair prospect that a majority of the Court will vote to reverse the judgment below

    Depending on your definition of “a fair prospect” (given that most people expect a 5-4 decision either way), that’s also a given.

    (3) a likelihood that irreparable harm will result from the denial of a stay

    That was, IIRC, the big issue before the 10th Circuit when it denied the stay, saying the state would not be irreparably harmed if SSM went into immediate effect. SCOTUS may have just wanted to delay instituting SSM in a number of states before it ruled and give the other Circuits a chance to rule before it finally bit the bullet.

    Trying to read SCOTUS’ tealeaves is a precarious sport to begin with but basing anything on its ruling on a stay is downright foolish.

  • http://Reallyawakeguy.blogspot.com somnus

    “And the Constitution doesn’t require any state to even have an institution of marrage. What it says is that if you have laws about marriage, they must apply equally to everyone.”

    That raises an interesting question: if the SCOTUS does overturn gay marriage bans nationwide, will any I the states go full wingnut and try to eliminate legal marriage altogether (in the name of defending marriage, of course)?

  • malta

    He has no idea what traditional marriage is, does he? Traditional marriage is between a man and his property.

    And it turns out that states got rid of traditional marriage years ago when they got rid of “coverture” (the idea that husbands and wives are one legal entity governed by the husband) and marital rape laws. I, for one, am very happy to dump the traditional model and redefine marriage as a relationship between equals.

  • whheydt

    Re: John Pieret…

    Not commenting on any of your posts. Just asking a question, and seeking your view of a hypothetical….

    Suppose that *every* circuit agrees that SSM is a right, with no circuit taking the opposing view (this would require overturning the LA decision at the appellate level, which could happen). What then? There would be no “controversy” for SCOTUS to resolve. Might they not decide to duck the issue altogether and let the Circuit courts take the heat from the religious right?

    Also…sure, there are probably 4 votes on each side with Kennedy in the middle. Would either side, thinking they have 4 votes but being unsure about getting a 5th vote be willing to take a case and risk losing the whole thing? Or would *both* sides “play it safe” and let the subject “simmer” for a while first? (Once burned, twice shy. Isn’t SCOTUS still smarting from the reaction to Roe v. Wade?)

  • Ichthyic

    Which means he’s just lying.

    well sure he is, that’s obvious. less obvious is why.

    what does he think he’s getting out of such an obvious lie?

  • Ichthyic

    Might they not decide to duck the issue altogether and let the Circuit courts take the heat from the religious right?

    very likely.

  • gerryl

    “thousands of years of history “?

    So … does that mean that we can expect to see plural marriages coming soon to a state near you?

  • http://trishwilson.typepad.com/the_count/ The Count

    Well, first of all, I’m assuming the court will make the narrowest possible ruling. However, let’s say that the SCOTUS manages to mumble out something like, no state can prohibit SSM. Then what?

     

    I mean, NOM, or whatever they call themselves now, and the rest of the professional offended-class certainly isn’t going to stop (too much money to pass up). What are they promising to do for the folks who send in their last pennies?

     

    Will we see a rush of new bills or state constitutional amendments? Are LGBT people in those states always going to be under the gun, never knowing when the state is going to try and invalidate their marriage? I suppose some bright lad will figure out how to (effectively) discriminate without running afoul of the 14th.

     

    I just can’t comprehend all this hate, and I’m not sure if I ever want to.

  • whheydt

    I’ve been looking over various media accounts (and the resulting comment threads) about Monday’s hearings. One thing has struck me about the lawyer arguing to uphold the Idaho and Nevada anti-SSM laws…. He is making an assumption that neither the pro-equality nor the judges have challenged and asked for data to support.

    To wit, he is assuming that all children born to a woman who is married or in a long-term relationship were fathered by her husband/partner. There are studies that show this to be false. The lawyer kept insisting that children have a “right” to be raised by their biological parents, but never were numbers presented beyond the fraction being raised by married couples. (And, of course, this sweeps under the rug all the children conceived through sperm and/or egg donors.)

  • whheydt

    Re: The Count @ #15….

    I just can’t comprehend all this hate, and I’m not sure if I ever want to.

    Ever heard of the Puritan Ethic….that sinking feeling that someone, somewhere, might be enjoying themselves?

    This is like that, only about 400 years more recent.

    Personally, I ascribe to the ethic that I don’t care what consenting adults do together, so long as they don’t do it in the street and scare the horses.

  • eric

    if the SCOTUS does overturn gay marriage bans nationwide, will any I the states go full wingnut and try to eliminate legal marriage altogether (in the name of defending marriage, of course)?

    I can’t imagine that happening. The economic train crash would be impressive, and probably guarantee non-reelection for most state legislators. Plus, on the empiricism side, we are approximately 17-0 for SSM being made legal and that *not* happening.

  • eric

    @11:

    Also…sure, there are probably 4 votes on each side with Kennedy in the middle. Would either side, thinking they have 4 votes but being unsure about getting a 5th vote be willing to take a case and risk losing the whole thing?

    Ed’s opinion seems to be that Kennedy is a near-lock for the pro-SSM side. So the way it would play out in Ed’s scenario is:

    1. The liberals and conservatives know which way Kennedy is likely to swing on this.

    2. So the four liberals or them + Kennedy grant cert.

    3. They then make a pro-SSM desicion

  • brucegee1962

    So … does that mean that we can expect to see plural marriages coming soon to a state near you?

    Was this meant in jest, or as a serious question? Because it does indeed seem as if plural marriage cases might be very likely to come up as soon as the dust settles from the gay marriage cases. Most of the same logic applies, after all.

    I’m actually looking forward to this — not because I’m interested in being plurally married myself, but because it will be a treat to watch the conservatives try to keep a straight face while claiming that such marriages are not “Biblical,” as if they’ve never even heard of the Old Testament.

  • whheydt

    Per a Slate article this morning, the three appellate decisions that have come down so far (and been appealed to SCOTUS) are on the list for the Sept. 29 conference.

    As for what kind of ruling….

    I’m sort of wondering what would happen if SCOTUS ruled that state may not *selectively* accept the validity of marriages from another state, but that it has to be all or nothing. (This is triggered by the situation in Idaho where they flatly refuse to recognize out of state SSMs, but there was no hint that they take the same position other out of state marriages.) I can think of a number of variations on this concept, mostly centered around reciprocity.

  • http://www.facebook.com/eo.raptor.3 eoraptor

    About plural marriages, Sister Wives not withstanding, there is a long and documented history of abuse in polygamous marriages. It is rare that there is true equality among the wives, and it is common that one of the wives ends up being the whipping-girl for the rest of the group. It is also common that one or more of the wives, didn’t consent to being married, or having another wife brought into the fold. The upshot of all this is that there is a real case to make against polygamous marriage. On the other hand, in a country that truly does value secular law, most of the problems could be addressed by law and regulation. The problem, of course, is the truly value part.

  • brucegee1962

    Still on the subject of polygamous marriages…

    Of course I’m aware that there’s a history of abuse and coersion, both in the US and abroad, in polygamous marriages. OTOH, a pretty good case could be made that the same is true of the entire institution of marriage as a whole. If there are laws that mandate that every partipant in a marriage, no matter who is involved, are all of legal age, all fully consenting, and not coerced, then those laws will benefit everyone, without penalties for those who hypothetically would like their de facto polygamous marriage recognized by the state.