This is the more important of the two gay-marriage cases. Tomorrow’s argument will be on the constitutionality of the federal Defense of Marriage Act (DOMA), but almost no one (best as I can tell), thinks the Court will uphold the constitutionality of that Act. The real suspense* is in the Prop 8 case. So ….
UPDATE: Here’s Tom Goldstein’s post-argument report.
SECOND UPDATE: This one’s from Reuters. It seems to me that the Roberts comment quoted in the article is very significant. In a good way.
THIRD (and final, for at least a few hours) UPDATE: Here’s SCOTUSblog’s Lyle Denniston’s take. He’s my (and many, many others’) go-to guy on all things Supreme. He seems to think that they’ll simply dismiss the Supreme Court case, saying that the petition grant was “improvidently granted,” leaving the Ninth Circuit opinion intact.
That would leave intact the Ninth Circuit ruling–which was that, because California already had been allowing same-sex marriage before Prop. 8 was approved in 2006, in localities that approved it, the state could not suddenly render those marriages null and void. Doing so would violate the Fourteenth Amendment’s Due Process clause. And since some gays already were allowed to be married, and their marriages would continue to be recognized by the state, refusing to allow other gays to marry would violate the Fourteenth Amendment’s Equal Protection clause. That’s the ruling that would remain in effect if the Supreme Court rules that the Prop. 8 petitioners have no legal standing to be a party to the case.
That now seems more likely to me than the other option that would allow them to avoid deciding on whether same-sex marriage is a constitutional right. That other option would be to rule that “the petitioners”–the group that earlier asked the Ninth Circuit, and then asked the Supreme Court, to “vacate” the lower-court rulings and uphold the constitutionality of Prop. 8–don’t have “standing” to be a party to the lawsuit, because they would have no injury from a court ruling striking down Prop. 8 that is sufficiently direct and significant to meet the Article III standing requirement.
If they go the “no standing” route, that would leave intact not the Ninth Circuit ruling based on narrow grounds but instead the lower, trial-court judge’s ruling, which was based on much broader grounds. The effect would be somewhat, but not entirely the same, whichever of these two options they choose.
As I understand it, if they choose the option that leaves the Ninth Circuit opinion in place, that would mean that localities in California would have the option to allow same-sex marriage but would not be required to allow it, although all government entities throughout the state would have to recognize any same-sex marriage as legal. If they instead choose the option that vacates the Ninth Circuit opinion and restores the lower, trial-court ruling, by ruling that the petitioners have, and had, no legal standing to appeal from the trial-court ruling either in the Ninth Circuit Court of Appeals or in the Supreme Court, that would mean that, for now, in central California, within the trial-court level federal court district where the case was filed and where the trial-court ruling was issued, Prop. 8 would be invalid and all localities within that court district would be required to allow same-sex marriage.
*Originally, I used the word “action,” but changed it to “suspense” because, if the Court strikes down DOMA as unconstitutional, that would be big, important action. I really meant “suspense,” because I do think the striking of DOMA is highly likely; not much suspense on that. But tomorrow’s argument will give some hint about whether I’m right.
Hey Bev, you’ll love this recent bit of humor:
Oh, gosh. Yeah.
The early reports don’t mention anything jaw-droppingly outrageous by Scalia in today’s argument. So maybe after the almost-universal reaction of revulsion to his statements during the argument in the Voting Act case last month, he’s decided to hold the shock-and-awe stuff for the moment.
I think a lot of people are now joining me in my view that he’s somewhat mentally unbalanced. Maybe he’s finally realized that and has concluded that that’s not such a good thing for him.
As to Scalia, I don’t think he had the mental ability (vs capacity) to introspectively realize how much of an ass he is.
With that, I really have a hard time with this case/issue. It is just another example of my opinion that the court system has become more about debate and the win than the actual philosophical (as in science, enlightenment etc) thought. I take the simple of approach as in 1 voice one vote, thus:
How is it a human being is born into this nation, has all the right afforded to such a birth at the moment of birth including the expectation of realization of those rights and privileges that come upon reaching adulthood until one realizes their sexuality? At that moment one may no longer be the recipient of all the unalienable rights of US citizenship if their sexual identity is of the same sex.
At the same time, the issue of states rights in this matter, I find baffling. After all, one is born a US citizen when it come to understanding unalienable rights. They are not born a state citizen. What purpose would the constitution serve then if states rights trumped such individual rights?
The Supreme court has no balls anymore.
“The Supreme court has no balls anymore.”
People need to realize the Court has never been one to be the tip of the sword to change social policy. I addressed this issue yesterday and pointed out that if use the indicia of legislative action (which is not uncommon for the Court to do–see 8th Amendment jurisprudence cases like Roper, Graham, etc.), and compare where the states stand vis-a-vis gay marriage, and where they stood on abortion at the time of Roe, interracial marriage at the time of Loving, and integration/segregation at the time of Brown, there was little hope the Court would lead the crusade to “legalize” gay marriage.
For perspective, the following is a list of states that banned integration/racial marriages/abortion/and gay marriages at the time of their SCOTUS decisions.
Brown–17 out of 48 states
Loving–16 out of 50 states
Roe–30 out of 50 (with only four states allowing it under any circumstances)
Perry/Windsor–32 out of 50 (38 define marriage as between a man and a woman) with 9 states and D.C. allowing it.
Well, to my knowledge, the only one of those issues that had ever been presented to the Court before the Court ruled those things unconstitutional in the cases you cite was racial segregation, in “separate-but-equal” Plessy v. Ferguson in 1896. The Court wasn’t exaclty jumping out excitedly and bravely to overrule Plessy in Brown, which I believed was the first case brought to the Court asking that Plessy be reversed. It took Earl Warren two Court terms, and a reargument, to get the Court to overrule Plessy in Brown. But still, Brown was the Court’s first opportunity since Plessy to rule segregation-as-government-policy violative of the 14th Amendment. The Court can’t just create a case.
Maureen Dowd has a terrific column in the NYT today in which she points out that the current Court has been all too gutsy in recent years. (She cites Citizens United and Bush v. Gore, but there have also been a slew of 5-4 pro-business rewritings of statutes there and a cascade of downright wacko states-rights-trump-federal constitutional-law-and-individuals’-rights opinions, too.) But it suddenly cowers on equal protection for gays, and the like.
Ooops. As Linda Greenhouse pointed out in a column last week in the NYT, the Court was asked in 1972, in a case called Baker v. Nelson, to hold that Minnesota’s bar to same-sex marriage was unconstitutional, and in a single-sentence the Court rejected the claim. Greenhouse’s terrific column is at http://opinionator.blogs.nytimes.com/category/linda-greenhouse/.
The Baker Court reaffirms the notion that SCOTUS is unwilling to lead the charge in social change, and will look to side step the issue to avoid ruling on the merits in such a way that removes the issue from the province of the state and federal legislatures.
Also, I don’t see recent SCOTUS rulings vis-a-vis business/commerce as “gutsy,” rather than comporting with how the Court has ruled on business issues in the past–which is, typically, anywhere from badly to piss poorly. I blame Scalia for a lot of that, however. From Chevron to Liggett to Credit Suisse, he has done a masterful job of steering the law to favor business interests and the expense of consumers.
I was using “gutsy” euphemistically.
The post is so instructive and helpful. thanks a lot.