The Supreme Court and Gay Marriage

The Supreme Court has agreed to hear arguments on both the Defense of Marriage Act (DOMA) and California’s Proposition 8.

Any time this court takes up any question I get nervous and this is no exception.

I’m especially nervous over the Proposition 8 case because I find it hard to believe that the SCOTUS will overturn the California Supreme Court decision.

Any speculation is probably a waste of time but I can’t resist making a fool of myself.

I suspect that the court will lean toward making Gay Marriage a state by state issue based upon the 10th Amendment. That would mean striking down DOMA but leaving the individual state laws and prohibitions in place.

The SCOTUS is not anywhere near ready to declare bans on Gay Marriage unconstitutional and, like I said, I don’t think it’s going to dictate to the Supreme Court of California how to interpret the Constitution of the State of California.

That means DOMA goes away but Proposition 8 stands and Gay Marriage again becomes illegal in California. But that would only be temporary. California could pull a Maine, put it back on the ballot, and get Gay Marriage approved.

Why you ask? Because it’s four years later and the Zeitgeist has moved. Black and Latino voters are more open to Gay Marriage. Put it on the ballot at the right time and it will pass.

I might point out that such a decision in the Proposition 8 case would be wrong. The court would be abdicating its obligation to protect the minority from the “tyranny of the majority.” James Madison would be terribly disappointed but, unfortunately, even the best political solutions don’t work in all cases.