Saturday, December 8, 2012

The Supremes to Decide on Marriage Equality

The Supreme Court decided to hear arguments on 2 cases affecting marriage equality:  Hollingsworth vs. Perry which challenges California's Proposition 8 banning same sex marriage, and United States vs. Windsor which challenges the Defense of Marriage Act (DOMA).

I have a bad feeling about this.

What does it say about the current state of the Supreme Court that we know with reasonable certainty how 4 of those Justices will rule, even before the arguments are presented?  Justices Scalia, Thomas, Alito, and probably Chief Justice Roberts will almost certainly vote against marriage equality.  Justice Scalia has practically announced his intentions since the Lawrence vs. Texas decision that ended the criminalization of gays and lesbians in which he was the most strident of the dissenters.

Justices Sotomayor, Ginzburg, Kagan, and maybe Breyer might be reliable for a favorable decision, but that is not certain. 

As usual, it all boils down to Justice Kennedy.

There is the possibility that the Justices could void all the existing policies in the 9 states that have marriage equality (an extreme measure that could have unintended consequences such as calling into doubt the Loving vs. Virginia ruling that voided state anti-miscegenation laws).  More likely, they will simply leave the status quo in place by saying that states do have a right to discriminate on the basis of sexual orientation.  Both of those outcomes would be enormous setbacks that will last for decades.

It is also possible that whatever the ruling on Proposition 8, it will apply only to California (which raises the question of why they wanted to hear the case in the first place) and rule on DOMA separately.

It is also possible that the Court will throw out both California's Proposition 8 and DOMA and state unequivocally that 14th Amendment protections apply to gays and lesbians and other sexual minorities, that LGBTs are indeed full citizens of the United States and as such, should not be subject to any disabling or discriminatory legislation.

I'm not optimistic about that last outcome.  Whatever the decision, it's a safe bet that the Court will vote its usual 5-4 split.  The days when Supreme Court Chief Justices worked for consensus on the bench are long over.

The Supreme Court is as starkly divided as Congress, reflecting a sharply divided electorate.  There are 2 opposed and perhaps irreconcilable visions of the United States in conflict.  One is the USA as a white Christian republic where enfranchisement is a privilege.  The other is the USA as a cosmopolitan secular democracy where enfranchisement is a right.  My loyalties are firmly with the latter.


Linda Hirshman at The New Republic says that we should indeed worry about the Supremes taking on these cases.   She points out that Bowers vs. Hardwick, which was a devastating loss for gay rights upholding state sodomy laws, was a reasonable gamble that lost 5 to 4.


Unknown said...

Like you, my sentiments are with the secular nation which in my "neck-of-the-woods" (i.e. gayborhood) is the majority. Unfortunately, the court may still be pulled by the last bastion of "Christian America" and will alienate itself from many.

IT said...

I do not find it likely that they Supremes will find marriage equality nationwide. I think it much more likely they will uphold Prop 8 as a legitimate expression of "state's rights" and thus forc eus to battle state-by-state to overturn each amendment.

JCF said...

I'm actually more optimistic than I was yesterday.

CJUS Roberts has shown himself, via the Obamacare decision, to be someone who cares about SCOTUS legacy and legitimacy. As I just argued over at GMC (Hi IT!), I don't think he'll want to see the INCOHERENCE of marriage benefits (esp if accompanied by Federal benefits, via Windsor-over-DOMA) being created, then annihilated, every time a married couple in our mobile society crosses state lines.

I can't read tea leaves. I'm in NO way predicting "this term, marriage equality, at every governmental level, becomes a reality in all 50 States". I think the decision will probably be MUCH more limited than that...

...but I don't think it will be a setback, either. I don't think a majority of the Court will (pardon) dick around w/ us, saying "Yeah, f@gs&dykes, you started winning elections, so go win 41 more!" (though that's TOTALLY what Scalia would say!). They'll strike down (at least part of) DOMA, and find a way for marriage equality to return to CA (perhaps by finding against the phobes' standing in first place---maybe they'll deny the Congressional Rethuglicans standing vis-a-vis DOMA, too!)

Well, that's how the tea leaves look to *me*. ;-/