SCOTUS BuildingOn Friday we learned that the United State Supreme Court will hear two cases involving same-sex marriage.  The first deals with California’s Proposition 8 vote that added an amendment to the California constitution that protected the definition of marriage to be between one man and one woman.  A federal district judge struck down that constitutional amendment.  A decision that was later affirmed by the 9th U.S. Circuit Court of Appeals.

The second case comes out of the 2nd U.S. Circuit Court of Appeals who ruled that the Defense of Marriage Act was unconstitutional as it denies homosexual federal employees who are legally married in states that allow same-sex marriages the same health and pension benefits allotted to heterosexual married federal employees.

I don’t predict a watershed decision for either side.  I do not suspect that either side will same-sex marriage approved or shot down at the national level.  I suspect we’ll see status quo and for the Court to allow the decision to be decided by the states.

It will likely be a mixed bag for both sides.  I suspect that the U.S. Supreme Court will reverse the lower court and 9th Circuit Court decision to overturn Proposition 8.  I would suspect that decision will be based on 10th Amendment grounds.  It’s a good sign that the court decided to hear the case.  They could have denied a hearing and let the 9th Circuit Court of Appeals decision stand.

The hubris in the reversal in overturning a state constitutional amendment voted by the people of California may drive the Supreme Court to intervene.  This decision likely won’t provide any guidance on whether other states should or shouldn’t allow same-sex marriage, just that the Federal courts shouldn’t overturn what has been decided by the people of the state to be included in their constitution.

That said I would not be surprised to see the Supreme Court uphold the 2nd Circuit Court of Appeals decision to declare the provision of the Defense of Marriage Act denying benefits for legally married homosexual couples – for the same reason – the Federal government should not interfere in a state’s decision.

I could be completely wrong, but that’s what I think will happen when they release their rulings in June.

3 comments
  1. “The hubris in the reversal in overturning a state constitutional amendment voted by the people of California may drive the Supreme Court to intervene.”

    I don’t think it’s hubris. Federal trumps States, constitutionally. Equal protection, under the 14th amendment, figured prominently in the decisions of lower court and taking away a right already granted figured in the 9th Circuit’s decision. There are pretty thorny constitutional arguments involved and to be honest, I think equal protection arguments will ultimately win in the long run, if not now before the Supreme court.

    It’s a bit of a moot point anyway because California voters would likely repeal it if or when they get a chance to vote on it again.

    I think DOMA will go down because it’s always been of questionable constitutionality.

  2. I don’t think it’s easy for the Court to try to “split the baby” on this one and say that somehow states can define marriage between a man and a woman, but the federal government can’t. The court would have to use different reasoning than the second circuit, which gave intermediate scrutiny to homosexuality-the same way to Iowa Supreme Court struck down the state DOMA. If the supreme court imposed that scrutiny on DOMA and strikes it down, it’s hard to see how state traditional marriage laws could survive. The supreme court might try to appeal to some kind of tenth amendment states rights argument to try to strike down DOMA while not touching state marriage laws(depending on what they do in the Prop 8 case), but that seems like a weak argument. DOMA doesn’t force any state to adopt a certain definition of marriage. it only establishes a uniform definition for federal law purposes. Striking down DOMA in that way might actually force the nation as a whole to endorse and subsidize whatever bizarre definition of marriage a state could conceive:

    http://www.nationalreview.com/bench-memos/335258/basics-doma-case-ed-whelan

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