The Supreme Court has decided to hear two marriage equality cases: United States vs. Windsor and Hollingsworth vs. Perry.
United States vs. Windsor is a federal challenge to the Defense of Marriage Act. The other, Hollingsworth vs. Perry, is a federal challenge to Proposition 8. Prop 8 is the California ballot measure that took away the right to marry from same-sex couples in the state back in 2008. The Prop 8 case has received the bulk of media attention because it came as somewhat of a surprise to the folks who follow these cases closely that the Supreme Court chose to hear that case.
On Friday's show, Ezra talked about whether public opinion has any bearing on the Supreme Court. If so, this is a particularly fascinating moment for the Court to hear these cases as public opinion about marriage equality is changing almost by the month.
Ezra also talked with constitutional law professor Kenji Yoshino that night. Kenji discussed some potential middle of the ground rulings in the Prop 8 case -- rulings that would not change the status quo in the entire country but would apply only to California or a handful of states. For example, here is one possibility with plenty of legal precedent: the Court could rule that a state can't give a group of people a right and then take that right away based solely on animus. From Kenji's SCOTUSblog post.
If the Court adopted this substantive rule, the decision would only affect the capacity of same-sex couples to marry in California, at least for the time being. No other state has permitted same-sex couples to marry before taking away the right. It would, however, preclude the nine states that currently permit same-sex marriage from withdrawing that right, unless they could show a rational basis for doing so.
That is one possible scenario. And if the court rules that way, the consequences would apply only to California and any other state where gay couples already have the right to marry. The Court is slated to hear the arguments in these cases in March and to rule in June.
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Any progressive, reasonable, intellectually-honest decision made by the collection of rubes and charlatans currently composing the Supreme Court is entirely coincidental, and expecting them to do anything right is delusional. And if anyone wants to oppose this by citing the decision on the ACA, I suggest you go look at Roberts' decision closely, because he used his "reasonable rational" decision to limit the future application of the commerce clause in support of progressive causes.
If they were going to go down the road of narrowly ruling on Prop 8, then why agree to hear DOMA at the same time?
To me our partisan SCOTUS chose to settle these cases to end the debate that is hurting republicans.
Equal rights advocates win. Republicans win by losing.
Imagine the Roberts legacy if he once again cast a deciding vote towards something he personally disagrees with. People might actually remember his as a Chief Justice who cared about Americans more than he cared about political ideology.
The arguments made by the opponents in the Prop 8 case as it has wound its way through the courts have been made with Justice Kennedy in mind. If Kennedy is persuaded as he is intended to be, then Roberts would be gravy. I'm not aware of Roberts being much of culture warrior, anyway.
If you want things to be different then, you must do things differently.
There is no moral or ethical reason to keep the DOMA bull. It was a reprehensible act of kow-towing to zealots on the far right and those who enacted it should be voted out of office. But then the Iraq war was even more reprehensible and cost lives and money,lots of unaccounted for tax money, and yet most who were in office at the time got re-elected and are still serving. Just who or what they are serving is debatable.
The SCOTUS is not going to hand Republicans an issue to bash the court. DOMA will be struck down as unconstitutional because it infringes on states rights because it prohibits the federal government from acknowledging a legitimate marriage between same sex partners. That is the easy case for the court to decide. The harder case is Prop 8 and the amendment to the California Constitution retroactively takes away the status and rights of same sex people who were legally married within the state before Prop 8. What the SCOTUS needs to do is see if they can void that part of the amendment without overturning the prospective nature of Prop 8. That may be possible and it will toss the matter back to California as a states right issue. This would leave Prop 8 partially in effect and the people of California will have to vote to overturn Prop 8 in another election. The SCOTUS is not going to find a US Constitutional right to same sex marriage because it is easier to duck the issue as a states right matter. Republicans will have to continue, at their peril, the campaign against same sex marriage on a state by state basis or try to get a Constitutional amendment. Both strategies seem highly doubtful. The more Republicans rail against same sex marriage the more they turn public opinion in favor of it. Republicans, the religious right and Catholic bishops are fighting a losing battle.
There is another possibility. Since Prop is not being defended by the California AG, the court could rule that the ones defending it do not have standing and thus uphold the 9th circuit ruling. This would allow the court to sidestep the issue entirely. The same could be done with the DOMA case. The court has already asked for argument on standing in that case.