Sigh. I get called more names on this topic than any other, and while I reject the notions of others that I am a racist, sexist, homophobic, misogynistic pig, clinging to my Bible, guns, hate, and antiquated thoughts; it doesn’t mean the words aren’t hurtful. Yet I bravely soldier on.
I don’t know how in-depth the regular media has been covering this, like I have said before, I don’t watch a lot of the main stream media. But the Supreme Court is going to be hearing two very important cases this week and the scope of their rulings, which will be given most likely in June, have the power to alter the United States as we know it. Today the court is hearing oral arguments on the constitutionality of Prop 8 banning same-sex marriage in California. Tomorrow they are hearing arguments on the Defense of Marriage Act, DoMA, to determine its constitutionality. These are some sticky wickets to be sure.
The prop 8 case probably has the widest scope of the two. It is based on Hollingsworth v. Perry. If the court decides to strike it down as a violation of the Constitution it would legalize gay marriage everywhere with almost nothing to stop it. A ruling like this could conceivably divide the country even sharper than over the Roe v. Wade decision forty years ago. The court could also overturn the lower courts ruling leaving the status quo in place for the time being. They could pretty much rule anywhere along this path in the most narrow to the broadest sense and however they rule it will become a landmark case.
How would this affect the state constitutions of 30 states who currently have on their books a definition of marriage as between one man and one woman? It would strike them down, the will of the people would be thwarted by a simple majority of nine men and women on the bench. It has worked this way for other laws on state constitutions that the SCOTUS has found to be unconstitutional so this shouldn’t be any different. However, there are some interesting thoughts from the courts based on prior decisions that could be weighed in advance of their decisions.
In 2003 the court struck down Texas anti-sodomy laws in overturning Lawrence v. Texas and finding a constitutional right to sodomy. At the time Justice Kennedy noted in his decision that this doesn’t mean the constitution must recognize same-sex relationships at a federal level, however Justice Scalia dissented arguing the logic of this opinion pointed towards same-sex marriage. Justice Ginsberg, one of the more outspoken liberal judges, is also worried about the possibility of nation wide polarization over the issue. The decision could cause another ideological divide, driving a wedge deep into the American psyche between the religious held beliefs of a vast majority of people and the progressive movement of activists. John Roberts has invited his gay cousin and her partner to sit in on the arguments. I am not saying this compromises any of his judicial integrity, I am just saying the family from which he comes and who he socializes with could have bearing on his decision-making capacity. The last Justice I can think to post anything about is Justice Kagan who was, then wasn’t, then was again rumored to be gay during her confirmation hearings by the media. Does it matter in the long run, no. Is it highly significant on this case…maybe, it depends just like with Roberts. The only thing left for me to dig into is how the argument is going to go…and I think I understand how the prop 8 opponents are going to frame it.
If the past is anything into this argument then the opponents of prop 8 will frame the argument as a civil rights issue comparing the marriage of gays the same as interracial marriage laws and comparing gays to blacks during the civil rights movement of the sixties. These should be easily defeatible arguments for the other side, mostly because they are totally specious. In fact, in November of last year an important case was decided in Federal Appeals court for the District of Nevada. The case was the result of the refusal of the State of Nevada to permit same-sex couples to enter into civil marriages as well as recognizing the same from other states as
marriages under Nevada Law. The court was in effect ruling on the Equal Protection Clause of the Fourteenth Amendment of the Constitution and whether that prohibits Nevada from maintaining statues that define marriage. The court decided that it did not.
The court noted that in the Secvik v. Sandoval decision that, “Homosexuals have not historically been denied the right to vote, the right to serve on juries, or the right to own property…determining whether heightened scrutiny should apply under the Fourteenth Amendment where a particular prohibition is not textually clear, because political power is the factor that speaks directly to whether a court should take the extreme step of removing from the People the ability to legislate in a given area.”
The court also said the distinction is not drawn according to sexual orientation or gender. In other words, a homosexual person of either gender may marry the same people a heterosexual person may marry…neither are permitted to marry members of the same-sex, which means there is no basis for applying the Equal Protection Clause like there was under race based marriages where some could marry and some could not; this rendered the civil rights argument moot. Don’t think this won’t be brought up in the oral arguments.
It remains to be seen until June what the court will ultimately decide on the issue.