I think The Huffington Post is a bit excited about the Supremes taking up gay marriage. Personally speaking, I couldn't see how they wouldn't take it up... I guess they like a bit of drama? Either that or they had to persuade Justices Scalia and Thomas to climb down from their high horses?)
Of course, now comes the interesting bit: persuading some discriminatory minded justices that discrimination is bad.
Carolyn Ann
Yeah, about that.
ReplyDeleteI've seen a lot of cheering from the pro-SSM crowd about the Supreme Court's decision to hear the case.
But really? It would have been better if they had turned it down. In that case, the lower courts' rulings would stand, Prop 8 would be overturned, and same sex couples would once again be able to marry here in California.
But the Supreme Court will instead decide... which gives the Prop 8 proponents yet another chance to see the lower courts' rulings overturned and Prop 8 upheld. Considering the makeup of this court and some of the decisions they've already made, I won't be at all surprised if they uphold Prop 8's ban on same-sex marriage.
According to Jeff Toobin on CNN, Justice Anthony Kennedy has written the last few gay-friendly decisions; that indicates there is a strong 5-4 potential for gay marriage to happen. (Of course, John Roberts could actually decide that civil rights is another issue he can't afford to be behind
Deletehistory on! In which case it would be a 6-3 decision...)
Another likely outcome is that they uphold the lower court decisions - but only for California. However, I don't think this is likely - they took the New York DOMA case as well. So they might decide that California has to allow gay marriage - the court traditionally frowns on rights given and then taken away - but also that same sex couples can file their taxes as "married, joint/separately". Which would put off the decision to the lower courts and the states. And I don't think they'll like that - it preserves the confusion where a gay couple can be legally married in New York but not New Jersey, and the problem where a California couple can be married, but only if they managed to catch that small window of opportunity.
I also believe they'll be concerned that the White House, via the DoJ, is not going to defend DOMA. That sort of thing will be important to the Chief Justice - he seems to be very keen on legislative proprietary. It is important that the White House has determined that DOMA is unconstitutional. (This will also cause a lot of griping about the lack of previous challenges from the Court's right wing.) Add in that the anti-ssm argument is, legally, very flimsy and it *had* to end up with the Supremes!
It's a hot-button issue, John Roberts probably doesn't want to leave it as an issue that will keep coming back and the public (finally!) looks ready to accept gay marriage and equal rights for same-sex couples. I also think no one on the court wants to be known as the man (it won't be a woman!) who wrote the next Dredd Scott decision. They value their legacies as much as any politician.