Tea Leaves and Goat’s Entrails: Guessing What the Supremes Will Do About Gay Marriage

I’ve read that the ancients used to slaughter a goat and study its entrails to try to predict the future. Others made tea and studied how the tea leaves settled to the bottom of the cup for the same purpose.

We all want to know what’s going to happen. We’re smart enough to anticipate, but not prescient enough to know. This human conundrum has kept fortune tellers and sooth sayers of one sort or the other in business for all of human history.

I’m telling you this as a caution. What observers of the Supreme Court think they see in the twitch of a judicial eyebrow or rise of a voice at the end of a question may, in reality, be nothing more than a tic or a frog in the throat. Ditto for the questions the Justices ask. They ask questions for their own reasons, or sometimes I’m sure, for the other justices’ needs. Questions, facial expressions and tones of voice do not Supreme Court rulings make.

Having cautioned you — and myself — with all this, I have to admit that what the press is saying about the Supreme Court hearings on Prop 8 today seems to reflect what I’ve been saying all along: Do they really want to jump in there and take the authority to make this decision on themselves? Would they be pushing the country over a cliff? Wouldn’t it be wiser, more honest, and frankly, more in keeping with the Constitutional authority vested in the Court, to let the people continue to work this out through the electoral process?

After all, it is working. 

Tomorrow, the Court will hear arguments on the Defense of Marriage Act. While DOMA is important, Proposition 8 is the big one. The reason I say that is because Prop 8 is the question that opens the door for the Court to take the powers which have heretofore been vested in the states onto itself. 

These decisions, and the possible fall-out from them, hang like the Sword of Damocles over this nation. Will the Court be wise and let the people speak, or will it be foolish and thrust this country over the culture war cliff altogether?

From the Chicago Tribune:

It was the first of two days of argument. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which denies federal benefits to married same-sex couples. Rulings in both cases are expected by the end of June.

The narrower DOMA case does not give the court the same opportunity to issue a broad ruling because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Only the California Proposition 8 case gave the court the option of finding a constitutional right for same-sex couples to marry. Polls show growing support among Americans for gay marriage.

But during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering “uncharted waters” on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry. (Read more.) 

  • Ashley

    Prop 8 was today. DOMA’s tomorrow.

    • Rebecca Hamilton

      You’re absolutely right Ashley. I had it that way at first. Somehow, a couple of key phrases got deleted along the way. I’ve put them back in. Thanks for the heads up!

  • Theodore Seeber

    “In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.””

    And that’s exactly what really bugs me. Church teaching aside, there is exactly ZERO data yet on long term gay marriage. At all. 9 years is not enough. 11 years is not enough.

    This concept is being pushed on everybody with NO real research or scientific basis. None at all. Even George Weinberg’s original research in the 1960s is plagued by accusations of bribery and political bias, let alone the more novel concepts the gay agenda has come out since the DSM-IIITR dropped homosexuality as a mental illness with almost no actual peer review or scientific debate.

    The whole history of the gay agenda is that of a group of people with a mental illness trying to get everybody else to claim that they are sane- and using tactics learned from dictatorships to do it, from redefining language to vilifying and even using violence against enemies.

    Let me know when there is something actually objective in this debate, because at this point, I’m turned off by the tactics used and utterly against being labeled a homphobe by a bunch of heterophobes.

  • pagansister

    Theodore, many same gender couples have been together for many, many, years, but couldn’t be “married” because it wasn’t legal. All thru history there have been long term, life same gender partners. So there is really no need to “study” same gender couples as to how long they could stay married. What is the study on heterosexual couples and marriage? Some? not so good!

    • vox borealis

      The notion that same sex couples cannot not get married—that it is illegal—is fallacy, a clever but effective rhetorical ploy. Anyone gay couple can trot on down to the local Unitarian Church and get married. They can stand on a beach before their friends and relatives and exchange vows. And so on. None of this is illegal. What is being decided is whether (a) the State will (or must) recognize such unions as a marriage, and (b) by extension if individuals and businesses will be compelled to recognize the relationship as well; and (c) constitutionally, if the power of the people in individual states to decide democratically what they will recognize as marriage will be taken away and assumed by the federal government.

      • pagansister

        Yes, Vox, many churches including the UU’s will marry SS couples—have for a long time. (UU here) And yes, they can also do the other things—my kids did the court house thing and then did a secular ceremony. The difference is to be recognized for their deserved benefits, the marriage has to be sanctioned by the “state” .

    • Theodore Seeber

      “Theodore, many same gender couples have been together for many, many, years, but couldn’t be “married” because it wasn’t legal.”

      Heterosexual couples live together just fine without marriage; some even have kids and never get married. So what?

      “All thru history there have been long term, life same gender partners. So there is really no need to “study” same gender couples as to how long they could stay married.”

      The need is to study the effects on open, legal, same sex marriage on the economy of a city. I don’t know what giving additional tax breaks to same sex couples is going to do. I know it will have some effect, but what?

      “What is the study on heterosexual couples and marriage? ”

      In the IRS tax code. We’ve got data going back over 100 years.

      • pagansister

        Seriously, Theodore, I’m going to study 100 years of tax codes for the average time married heterosexuals stay married? What? If tax breaks are given for married heterosexuals, what difference is it going to make if the couple is same gender? Married is married, if this comes to pass. I probably won’t see any difference in my taxes if my friend and her partner are married and paying taxes?
        As for heterosexual couples living together and not married? (and yes, some even have kids). They lose tax wise—- not my problem. The difference being they can do the legal married thing, but a SS couple can’t in all states.

        • Theodore Seeber

          Ah, I see. Wrong question.

          The question isn’t how long anybody stays married. The question is, does divorce and single-gender parenthood harm the prospects of the children?

          For heterosexuality, the answer is an unqualified YES. It does harm the children. Greatly.

          For homosexuality, you need at least two or three generations worth of data, which we simply do not currently have. We can’t even get to a statistically significant sample because at best, 3% of the population is homosexual and less than 1% of the total population is in long term relationships. The sample size is less than the error rate for most polling, or any other form of statistical analysis currently done on human beings.

          • Rebecca Hamilton

            We also might try common sense. It’s demanded of our whole society that we pretend that there are no differences between homosexuals and heterosexuals other than “sexual preference,” but that is not true. There are huge differences between a man and a woman and two people of the same sex in all sorts of ways. Will children be harmed by yet another of our selfish experiments which ignore their needs? Of course they will.

            We commit societal lies about how our actions affect children all the time in order to keep from having to consider their needs. The lies we’ve told ourselves about how divorce affects children are a case in point. In truth, homosexual couples cannot create children of their own bodies, so this whole question should be pretty much moot except in isolated cases. As for adoption, from what I’ve seen the needy foster child no one will take except gay couples is a myth. They appear to want designer babies and are willing to pay enormous amounts of money to have them produced.

            Again, the welfare of children, who are reduced to commodities, is not considered.

            • SteveP

              Hear, hear!

  • vox borealis

    Will the Court be wise and let the people speak, or will it be foolish and thrust this country over the culture war cliff altogether?
    Let’s just say that I’m not particularly hopeful the SC will pass up the opportunity to strip more democratic power from the States and hand it over to the federal government. And frankly, we *know* which way four of the justices are going to vote already. So it really comes down to what Kennedy ate for breakfast that day or how much Roberts is intimidated. My faith in the system—that it is rational and fair and, well, constitutional—is zilch.


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