March 26th, 2013

Will SCOTUS punt on gay marriage?

Tom Goldstein at SCOTUSblog thinks so:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

That would be just fine with me. I have written before at some length about the legal issues in gay marriage (and I probably will again), but right now suffice to say that even though I believe that public opinion has been going (and will continue to go) in the direction of extending the right to marry to gay couples, that has nothing to do with what the Court should do on the issue.

SCOTUS should not operate as a public referendum, although it certainly sometimes does. SCOTUS should interpret the law and the Constitution and apply it. If the Consitution should be interpreted to guarantee that gay people have a universal right to marriage regardless of what the people of a state say they want, that’s what SCOTUS should rule. If the Constitution (and its amendments) does not guarantee such a universal right, and the people of a state want to regulate the practice of gay marriage in either direction, then they should be allowed to do so. If the people of a state want a change of some sort, the proper forum would be the state legislature and/or a state referendum. If the people want a national change and wish to create a new right to marriage for gay people where none existed before, the proper forum would be a constitutional amendment.

But SCOTUS previously had no trouble creating a new constitutionally-protected right (to privacy) in Roe v. Wade, and now (or in a little while, if not now) it may have no trouble creating a similar right to marriage that is protected from discrimination on the basis of the gender of both participants. If so, I am extremely concerned about the preservation of the right to religious freedom for those who have differing views. And of course there are also the slippery slope arguments (concerning polygamy, for example)

I tend strongly toward the libertarian point of view myself on this issue, which is fairly well-stated here by Richard A. Epstein of the Hoover Institute, and contains its own inherent dilemmas in regard to gay marriage. I differ with Epstein in that I am much more at peace with the idea of leaving the question to the states.

In the larger sense, I also think that our society has embarked (no, more than embarked; it’s actually quite far along on the journey) on a dangerous experiment in throwing out a great many time-honored values regarding marriage, the jettisoning of which has had an effect on children and families that is quite pernicious. And I’m not interested in social science research on the subject; I know social science research intimately, and I’m not especially impressed by either its validity or its objectivity on this subject or nearly any other subject that could be called political in nature—which turns out to be most subjects.

[NOTE: I have written before about the relation between gay marriage laws and those on miscegenation, here.]

16 Responses to “Will SCOTUS punt on gay marriage?”

  1. sharpie Says:

    This was said so awful well that no more needs to be said.

    The second paragraph: like butter. Butter!

    Check out Paul Clement’s brief on the second of the cases, Windsor, which is actually a very easy read due to a masterful job of writing.

  2. Sam L. Says:

    There’s nothing we need more right now than a SCOTUS decision like Roe v. Wade to stop the democratic decision by the people on this. Another 50 years or wrangling will do us no good. California voters liked Prop 8. Prop 8 opponents would not play the long game, they had to win now. It may be inevitable, but they seem not to think so.

  3. George Pal Says:

    There is an entertainment value to SCOTUS nowadays. Watching them insert into an enumerated power a turgid desire.

  4. Ray Says:

    The Supreme Court’s guiding principles have always been political rather than judicial. The “equal treatment” provision of the 14th amendment was specifically written after the civil war to outlaw racial discrimination. But the court has allowed various forms of “affirmative action” for decades when all such policies should have been declared unconstitutional immediately.

  5. scottthebadger Says:

    I quite agree with you, there is a movement to diassemble parts of our societies foundations. I think that there are people who want to totally raze our culture, so that they can rebuild it in the image of what they want, which would appear to be based on hedonsism. Hollywood seems to be quite OK with this, judgeing by the movies made since the 1960’s.

    This movement has been used to great effect by the Progressive movement. They are able to promote themselves as the people who will let you do whatever you want, no matter what historical records may show to be the consequenses. This is not the first time that there have been widespread use of drugs, alcohol, and an absence of sexual morality. Heroin was once sold over the counter, as was cocaine. They became illegal for a reason. The marijuana available today is not the ditchweed of the past, it is pretty nasty stuff. Why should a society condone the self destrustion of peoples ambition, just because it’s easier to let them get stoned.

    Of course, a society made up of hedonists is easy to control, just keep them sated with the pleasures that they want, and they will allow you to do whatever you want to them otherwise. Just look at the Obama Administration’s playing to it’s audience with the proloferation of welfare, and the pandering to women ala Sandra Fluke. While the Democratic base is kept happy, the TSA is slowly morphing into the National Security Force Obama spoke of before his election in 2008, the one as “powerful and well equipped as the miltary”. Yet it is niether military, nor law enforcement. The last time there was a armed security force that was answerable to a nation’s executive alone, I believe it was called the SS. We are well on our way to the estabilishment of an American version of the Imperial Japanese Kempeitai, or Thought Police. We are living in scary times.

  6. M. Adams Says:

    In the 19th century the Supreme Court ruled against polygamy (in-spite of the first amendment). So the government can constitutionaly limit the quantity of participants in a marriage to two people but (probably depending solely on Justice Kennedy’s opinion) maybe not the gender of the two parties involved. Which, perhaps, will be good for gays & lesbians, but do pray tell what about bi-sexuals? What a Hobbsons choice the government will force on them.

  7. Ed Bonderenka Says:

    5000 years of male/female marriage and all of a sudden, it’s a marriage if two of the same sex want it so?

    A marriage is a joining together.
    Men and women were designed for that.
    Men and men weren’t, and neither were women and women.
    It’s not hate to point to common sense.

    Or biological reality.
    But no, we’re expected to say black is white and round is square.
    Or Arbeit Macht Frei.

  8. Tesh Says:

    What amuses/saddens me is that they tend to argue that marriage is a “right”… which has specific meanings given the Constitution and Bill of Rights. Specifically, they are God-granted, not a mere construct of government.

    …and God does not approve of homosexuality.

  9. sharpie Says:

    That’s the gist of it Tesh, and is the reason why the gay lobby seeks a judicial and not a democratic remedy. But to get that remedy what awful things have to be done to judicial interpretation and construction? The DOMA established the constitutionality of limiting federal recognition of marriage to heterosexual marriage. It was signed into law by President Clinton. Reid, Pelosi and Leahy supported it. Both houses of Congress voted approval in significant majorities. The DOJ defended it. No tradition or common law defies it, and as M Adams noted, the Supreme Court banned polygamy which illustrates that the condition of one man and one women is unique.

    And why one man and one women? For the rearing of children.

    What then about the sterile exception, or as Justice Breyer put it:

    “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?”

    In other words, as articulated by the gay lobby, ‘hey, they get to, and they’re not having children. How come we can’t?’

    I’ve got to say, this is a conundrum and the best answer I can come up with is that the sterile couples received a windfall and really shouldn’t qualify for the benefits and protections afforded. So, if the gay lobby really wants equality, they need to convince the populace enough to amend the constitution or start bringing lawsuits to rescind marriage for sterile marriages.

  10. Jim Nicholas Says:

    Absent evidence to the contrary, I assume that the predominant family structure evolved because it was the most effective in preparing the next generation to survive. Therefore, I have been distressed that the focus of this debate has been on the desires and rights of the adults rather than on the welfare of the children and the cultural institution that has evolved to support their development.

    Having said that, I have to acknowledge that heterosexuals have inflicted great damage to the institution of marriage–and for the same reason, a focus on the desires and rights of the adults more than on the welfare of the children. So perhaps homosexuals will not add much to the havoc that heterosexuals have already created.

  11. expat Says:

    I too am worried to about the effects on our long traditions, and I get upset that the gay rights lobby never mentions them. In fact, you mostly get me, me, me arguments. I’ve read people talking about IVF and surrogates as if they were nothing, but the way they talk is demeaning to women and to motherhood. (I can remember gays using the term fag hag, which makes me think that a subset of gays have no trouble demeaning women.) I don’t trust any of the studies about the effect on children, nor do I see real numbers of gays that have children and identifies how they came by them.

    I also don’t like that the more stable gay pairs don’t take on the flakes among the advocates who don’t see a reason for monogamy. I don’t like the words mother and father being distorted or displaced by parrent one and parent two.

    Perhaps some of these issues can be resolved over time, but right now the push seems similar to Cuomo’s gun control law–a rush to jump on a bandwagon but in the end a poorly thought out measure with far more lasting consequences than the size of a magazine.

    I agree that a SCOTUS change now would have an effect like Roe vs Wade and would stop serious further consideration of the issue and produce more name calling and restrictions on those who don’t believe that marriage should be redefined.

  12. sharpie Says:

    What awful things have already been done to the rules of judicial interpretation. As in Justice Kennedy in Lawrence v Texas writing, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.” That’s not interpreting the law; it’s just argument, and very vague argument that justifies where it wants to go. I can realistically posit that the statement could justify the Muslim rape of women who violate the transcendent dimensions of the Quran.

  13. Geoffrey Britain Says:

    I am not at all confident that this court will not rule against proposition 8. It will distress me but not at all surprise me, if this Court rules that the banning of same-sex marriage is unconstitutional based upon the 14th amendment.

    Should they do so, it will be prima facie evidence that all three branches of our government have passed the tipping point into irredeemable dysfunction.

  14. Lurch Says:

    If you will indulge me, the term “gay marriage” has always been a pet peeve of mine. Here at my University, we have the “LGBT” community (Lesbian, Gay, Bisexual, and Transgendered). So this gay marriage thing only applies to homosexual men? I note SCOTUS is using the term “same-sex marriage”. I salute them for being more precise.

    On another note, how soon before bisexuals demand polygamy? It seems like they are being left out. I say bisexuals (if they really exist) should be allowed to marry in groups of up to four (two men and two women). Such an arraignment would allow for which ever coupling is desired at any given moment. How can we deny them such a basic right?

  15. sharpie Says:

    A more nuanced thought about “sterile” marriages and a sensible justification of them derived from the idea of “incidental powers:”

    Under Founding-Era law, an “incidental” power was an implied power that was (a) less important than an express power, and (b) customarily or reasonably necessarily used as a way to carry out the principal power.

    Sterile marriage is an “incidental” marriage that was reasonably necessary to carry out “procreative” marriage. If one were to give “incidental” status to same sex marriage, as others (see Lurch above) have pointed out, the extension cannot be logically halted. And even more basic, on what grounds can same sex marriage be deemed reasonably necessary to carry out procreative marriage?

  16. sharpie Says:

    I agree with Geoffrey Britain that the Supreme Court will not affirm the will of the Californian people and uphold Prop 8. The Supreme Court will rule this way because Kagan, Ginsburg, Sotomayer and Breyer will “pragmatically” apply judicial activism to effect a moral cause and because Justice Kennedy’s one abiding and coherent principle is a principle of liberty defined in accordance with the view that human nature is not something to be freed from but valued and expressed in all forms.

    Does it look like tyranny yet?

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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