I listened closely to the arguments before the U.S. Supreme Court on gay marriage, concerning California’s Proposition 8 ban and the restrictions placed on gay marriage through the federal Defense of Marriage law. If the court’s majority is consistent, a majority will end the DOMA restrictions under review and uphold Prop 8.
That doesn’t mean that a majority of the court approves of banning gay marriage. Frankly, I see six supporting gay marriage rights. However, I only see, at most, four willing to declare a constitutional right to gay marriage. Such a decision would overturn California’s law and laws banning gay marriage in 30-plus other states. The justices want to defer to federalism, or the idea that states should be allowed to decide whether gay marriage is legal or not.
Nevertheless, I don’t think the court will allow California’s Prop 8 to stay in effect. At least two of the justices, John Roberts and Anthony Kennedy, seem inclined to try to craft a compromise decision that upholds the lower courts’ striking down Prop 8. How they would do this would declare that the arguments for Prop 8 are disqualified because they are not from the state of California. California, dominated by Democrats, has refused to argue for Prop. 8. The same thing has occurred with DOMA, with the Obama administration refusing to defend DOMA. These examples set a bad precedent, where governing bodies can refuse to do their job based on how political winds blow, but it is a reality today that any Democrat who does not publicly support gay marriage has no future politically.
It’s distressing that the high court seems to be leaning toward taking an easy solution by disqualifying those arguing for Prop 8. It’s far better for the high court to take a stance, or in other words, do its job. It can either declare that there is no constitutional right to gay marriage, and uphold the right of the states to decide the issue, or declare that denying marriage to gays and lesbians is unconstitutional and invalidate the laws in California and many other states.
As I have mentioned, based on what I heard, the court is leaning toward the former, that states have supremacy, but is looking for a way to invalidate California’s Prop 8. What’s ironic is that if Prop 8 was to stand, it would almost certainly be reversed via a vote next year. In fact, the trend toward gay marriage rights is likely moving nationally as well.
I haven’t mentioned much about DOMA, but it’s a goner. I see at least six justices agreeing that the feds have no business denying benefits to couples married in states that have gay marriage. In this case, the federalism argument comes without the squeamishness of Kennedy and Roberts that may doom Prop 8.