Monday, June 24, 2013

Supremely Anticipated

Per its habit in recent years, the Supreme Court has waited to the last week of its current session to issue a host of big-ticket decisions, four of them in total.  The Court typically offers opinions on Monday or Thursday, though they can issue opinions whenever they damn well please (including waiting until the next session if they choose).  But most Court observers think it will be this week.

Two of the expected decisions have to do with same-sex marriage and two others deal with race, the Voting Rights Act and affirmative action, respectively.  Full analysis of the issues in the cases (and the decisions when they become available) can be found at the Scotus blog website, which is really the best source for quick information about the decisions that is solid, plain-spoken, legally rigorous, fact-based analysis.  Unlike the hyperbolic mainstream media, Scotus blog is careful to get things right.

I figured it would be fun to make a few predictions about the same-sex marriage cases and to do so in public, so here are my thumbnail predictions.  In Windsor v. U.S., the case which challenges the constitutionality of the Defense of Marriage Act (DOMA), I predict the court will strike DOMA down, arguing that it is a violation of states' rights in our system of federalism.  The federal government allows states to set conditions for marriage and therefore will be told by the Court to live by this standard consistently.  This won't mean that gays can marry everywhere, but it will mean that in the twelve states that permit gays to legally marry, those same-sex married couples will have federal marriage rights as well.

The second same-sex marriage case, Hollingsworth v. Perry, is about the constitutionality of California's 2008 Proposition 8, a state constitutional amendment that banned same sex marriage in the Golden State.  The Proposition followed on the heels of a California Supreme Court decision that legalized same-sex marriage.  Because it was a state Constitutional amendment, it trumped the California Supreme Court ruling.  This case is a morass of confusion because the state of California refused to defend its law, making it possible that the Supreme Court will reject the case for lack of standing (the right to appear before the Court).  If the Supreme Court does issue a ruling, I think that it will hinge on the position that the Court took in Colorado's Amendment 2 in a 1996 case called Romer v. Evans.  In that case, the Court advised Colorado that amending its constitution to specifically limit the rights of specific groups (in this case, gays) was a violation of the 14th amendment equal protection clause.  This precedent could be applied to California's Proposition 8, should the Court elect to offer an opinion in the case.  I think that is what the Court will do.

In both cases, then, supporters of same-sex marriage will enjoy a victory that reflects the shifting public opinion on the issue of same sex marriage.  Call me an optimist, but I think it's going to be a good week for gays.

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