All eyes are on Washington this week as The Supreme Court hears two cases relating to what is, euphemistically, called marriage equality. The case of Proposition 8 in California provides one opportunity for the court to rule while the mid nineties Defense of Marriage Act passed by Congress and signed by President Clinton provides the other.
The tone of the questions coming from the justices yesterday in the Prop 8 arguments seem to make clear that the judges are uncomfortable with being where they are at this time. While the Court does not feel obligated to follow the public’s wishes certainly they cannot be unaware of the shift in American public opinion on the issue of gay marriage.
What is interesting is that the court has decided to hear both cases in the same session. One of the, at least theoretical, possibilities of rulings in these cases is that we will see two opinions that contradict each other.
Let us look at the two cases individually. In California a referendum labeled Proposition 8 passed as a ballot initiative. Passage of this banned gay marriage. The law was appealed through the courts, ruled as unconstitutional by a District court judge, and then upheld by the Ninth Circuit Court of Appeals as unconstitutional.
The Defense of Marriage Act or DOMA as it is called was passed by Congress and signed by President Clinton back in the nineties. This came about as a result of efforts by Conservatives to keep in place traditional marriage and, if it put Democrats in a tough spot with one of their base constituencies, that was was a plus too.
Most observers feel the Court does not want to pass a sweeping ruling, one that would either legalize or ban all gay marriage. The court with it’s Conservative majority is not a natural constituency for the advocates for gay rights, the Conservative view point, however, is usually to back states rights. Except, of course, when it comes to counting ballots in Florida……but let’s not go there.
Where this will get interesting is if the court decides to either not reverse the courts in California or, decides that those bringing the case do not have standing ( the State of California declined to advocate for the continuance of Prop 8 .) In both cases the result would be the same. The ban on gay marriage would be struck down in California. This would seemingly open the door for states to continue on a state by state basis to decide this issue for themselves.
On the second case, being argued today, the Obama administration has decided not to defend the law of the land, that is The Defense of Marriage Act. DOMA takes rights away from the states, it deems that the Federal government will not recognize same sex marriages, even from states that allow them. If the Court upholds DOMA they would contradict the supposed ruling or lack thereof on Prop 8.
The end result is this. As much as the court may not want to make a sweeping ruling, to interject themselves into the debate full scale, they may end up being forced to do so. This is because ruling in favor of both statutes as they currently exist under law would result in allowing states to pass rights that the federal government would not recognize. One doubts that the court would do this.
We will know in a couple of months the judges rulings. My advice is to hang on tight. Those advising that this will be not be a sweeping ruling one way or the other are not being cognizant of the clear contradictory natures of allowing both laws to stand as is. The judges, like it or not, are going to have to come down on one side or the other.