Tuesday, March 26, 2013

Gay Marriage and the Supreme Court

The SCOTUS is hearing oral arguments on the Defense of Marriage Act (DOMA) and Proposition 8. Given the current make-up of the court, I'm more than a tad nervous about what's about to happen.

Ultimately I think everything hinges upon Chief Justice John Roberts and his concern about how his court will be viewed by history.

The correct thing to do is to declare that Gay Marriage, like interracial marriage, is a clear extension of the equal protection clause of the 14th Amendment. That would invalidate DOMA, Prop 8 and every law and state constitutional amendment declaring marriage as between one man and one woman in the country.

There isn't a snow ball's chance in hell of that happening.

At the other extreme would be to uphold DOMA despite the fact that marriage, based upon the 10th Amendment, should be the sole province of the states, and vacate the federal court decisions on Prop 8 leaving the California Supreme Court's acceptance of the amendment in place.

I don't really expect that to happen either.

I expect a split decision as they say. I don't see how the court can uphold DOMA. I suspect they will rule that the federal government has to respect the individual state's definition of who's married. This also protects the most conservative states from a federal law legalizing Gay Marriage that might be considered down the road.

On Prop 8 I expect the circuit court and Judge Walker's decisions to be vacated and the decision of the California Supreme Court to be upheld. That would leave Prop 8 in place and set the stage for another ballot battle in California to repeal Prop 8 sometime in the not too distant future.

Most knowledgeable observers expect the issue to come down to the vote of Justice Anthony Kennedy. Luckily for me I'm not considered knowledgeable so I can be creative.

No, seriously, I think it's safe to bet that Scalia and Thomas are going to vote (1) to uphold DOMA and (2) to reinstate Prop 8. Justice Samuel Alito will also most likely vote with Scalia and Thomas.

On the other side of the aisle justices Ginsburg and Breyer will most likely vote (1) to strike down DOMA and (2) let one of the federal court decisions on Prop 8 stand.

Kagan and Sotomeyer will probably go with Ginsburg and Breyer but only if the rulings are very narrow. I'm especially suspicious of Sotomeyer. I wouldn't be surprised if she balked here especially on the Prop 8 question.

I think Kennedy is going to lean right on this one and isn't going to be the savior Gay Marriage proponents are hoping for.

If anyone is going to carry that torch, it might be Roberts because he recognizes that history is on the side of Gay Marriage.

I think the compromise is let the 10th Amendment and states rights rule supreme. That would mean the overturning of DOMA but the reinstitution of Prop 8.

I'm thinking DOMA goes down by a 5-4 vote with Roberts, and not Kennedy, casting the deciding vote. Prop 8 gets reinstated by a 6-3, or perhaps even 7-2, vote depending upon where Kagan falls.

Both sides can then declare victory and we can get ready for the next big California vote. This time the electorate will vote to repeal Prop 8 so, ultimately, the forces of darkness will lose again but only after much pain and gnashing of teeth.

Conservatives, as usual, are fighting a losing battle here against the tide of history. Their defeat is certain. The only questions are how long will it take and what will be the cost.

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