Wednesday, December 19, 2012

About those cases

The US Supreme Court has agreed to take up two cases regarding marriage equality in the US. There is one thing we know for certain: No one knows what the Court will do.

I’m not a lawyer or legal scholar, but even if I were, it wouldn’t help. Still, you need to know where I’m coming from before I comment because, like everyone else, my lack of qualification doesn’t stop me (or any of us) from guessing what will happen.

One thing I thought was very interesting was the questions the Court asked in the two cases. I think the way the Court rules may actually be related to those questions.

In the Proposition 8 case, the Court wants the petitioners (the anti-gay people) to file a brief on whether they have standing under Article III, Section 2 of the US Constitution. If the Court determines that, no, they don’t have standing, they could dismiss the case without ever ruling on the constitutionality of Proposition 8 itself, or whether voters have the right to enshrine discrimination in their state constitutions. That would leave the earlier ruling in place and marriage equality would return to California, without the larger questions being settled.

I doubt very much that the Court will use the Prop 8 case to strike down similar anti-gay amendments to other states’ constitutions. At the most, they might rule that there was something wrong with Prop 8 itself, but only in the context of California, but my bet would be that they’ll rule very narrowly, perhaps only on the issue of standing, ruling that the anti-gay side doesn’t have standing to defend Prop 8.

In the challenge to DOMA, the Court asked if the fact that the Executive Branch was not defending the law took away the Supreme Court’s jurisdiction. They also asked whether the “Bipartisan” Legal Advisory Group has Article III, Section 2 standing to defend the law. The “B”LAG was created by Republicans in Congress to defend DOMA when President Obama said he would not; whether or not that’s constitutional is itself an interesting question. Constitutionally, Congress makes laws, the President enforces and defends them and the Supreme Court adjudicates conflicts laws create. Granting standing to “B”LAG could create a separation of powers conflict.

So, on the DOMA ruling, it wouldn’t surprise me if, because of the separation of powers issues, the Court denied standing to “B”LAG. On the other hand, since the issues in DOMA are huge and national, the Court may take the case to deal with those issues, especially because Section 3 of DOMA is so blatantly unconstitutional.

The Court seldom makes radical rulings and generally follows public opinion, not lead it. Roe v. Wade was one case where the Court was way ahead of public opinion and four decades on, the country is still divided over abortion. However, the US is increasingly supportive of marriage equality, as demonstrated by the elections this past November when three states enacted it by referendum. So, the Court doesn’t risk being very far in front of the public.

The potential issues are this: If the Court upholds Proposition 8, then it will have to be overturned by ballot measure (and it almost certainly would be). The worse part would be that legal challenges to similar state constitutional amendments could collapse. But this all seems highly unlikely to happen, unless the Court finds that the majority can discriminate against a minority through ballot measures (unlikely, and it would be a huge worry for all minorities in the US).

If the Court upholds DOMA, it would be a Dred Scott-like decision—deeply flawed, wrong in law and morality, and one that would obviously be overturned by a later Court. This is not a likely outcome. If that happened, it would await the faster option of repeal by Congress, probably 15-20 years from now.

The Supreme Court has usually been evolutionary rather than revolutionary. As the US has moved consistently and inevitably toward fully embracing marriage equality, there’s now no reason to think the Supreme Court will take a backwards step on these cases.

My bottom line prediction: They will overturn both Prop 8 and DOMA, though perhaps only on very limited, even pedantic grounds.


Roger Owen Green said...

I'm still mystified how they are going to merge DOMA and Prop 8 into one ruling, unless they decide not to decide Prop 8. What I said about this.

Arthur Schenck said...

As you know, I've had a post on this topic in the works for awhile, and one thing I AM clear on is that no one knows what will happen. Still, I expect two separate rulings.