Tuesday, March 26, 2013

A couple of things to remember as SCOTUS takes up marriage equality

It will be fascinating to hear what happens in the Supreme Court today and tomorrow as oral arguments are heard about DOMA and California's Prop 8. But I'd like to remind you of a couple of things:

First of all, remember that after oral arguments on Obamacare, almost every commentator said it would be overturned. Of course...they were wrong. So the real news comes when the decision is announced, not today.

Secondly, I'd like to remind you of something I wrote about a while ago called the diffusion of innovations. It is basically a theory about how social change happens.

The blue line represents the rate at which various groups adopt the new idea/technology and the yellow line shows its market share.

When it comes to marriage equality, we are clearly now in the stage where the "Late Majority" is coming around. The question of the day is whether or not Supreme Court Justices like Anthony Kennedy and John Roberts are prepared to play the role of Laggards (I think we can safely assume that Scalia, Thomas and Alito fit that bill).

In other words, we've recently witnessed the arrival of the tipping point and change is inevitable. What remains to be seen is whether or not the Supreme Court will throw up barriers to that inevitability or facilitate it.


  1. On another blog, I commented that Roberts seems to be very cognizant of where things are going, and deeply concerned about how his court will be perceived in history. We saw that with his "swing" on the ACA decision, and I think we'll see something like that again. My personal guess is that we'll see he and Kennedy coming up with a very narrowly crafted decision that upholds the lower courts. It may not be the "home run" major change in precedent that liberals want, it most definitely won't be what conservatives want, but it'll be something that puts "The Roberts Court" on the right side of history.

    1. My wife was nervous about this and this is essentially the argument I made to her. Roberts and Kennedy won't issue a decision that is in favor of gay marriage. But they will probably author something that splits the difference and finds some way to invalidate both DOMA and Prop 8 on technical grounds but in a way that doesn't suggest that gay marriage is okey-dokey.

      Hey, they're lawyers. This is what they do for a living. And Roberts showed with his "its a tax" decision that he can thread the needle with the best of them.

    2. From reading through the general analysis of the questioning, it seems like they're leaning towards one of two paths with Proposition 8. The first is "no majority," which means the 9'th Circuit's decision stands (but only in the 9'th Circuit), the other is to find "lack of standing" and that the appeal was "improvidently granted," which boots it to the District court's decision. Either way, it means that Prop. 8 proponents lost.

  2. Scalia is the Pat Buchanan of the Supreme Court.