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The Supremes take up gay marriage

Mr. Dilettante's Neighborhood
U.S. Supreme Court
CC/Flickr/Rob Crawley
The U.S. Supreme Court has agreed to hear two cases relating to gay marriage.

I suppose it was inevitable:

The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

There are a lot of ways this could play out, but I'm hopeful that the Court gets it right. First, a few assumptions:

  • We will eventually have gay marriage in this country. Whatever you think about the merits of it, it's going to happen, because young people are being taught that it is a civil right and have been taught that way for years. It may take a while to become universal, but it will happen and probably within 10 year, maybe sooner.
  • The secondary considerations in how these cases are decided are more important than the actual ruling on the merits.
  • We don't need any more Roe v. Wade type decisions, although we could get one when it's done.

The New York case is a challenge to the Defense of Marriage Act, or DOMA, which defined marriage for federal purposes as the union of one man and one woman only. This sailed through Congress and was signed into law by Bill Clinton in 1996. At this point, if DOMA goes down it won't bother me that much. One size fits all federal laws are always going to be problematic and this one is no different.

The inevitable reply -- but what about the Civil Rights Act? That would be the exception that tests the rule. The Civil Rights Act simply codified the constitutional rights conferred by the 13th, 14th and 15th Amendments, especially the 15th, which reads as follows:

SECTION 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

By my reading, the Civil Rights Act is precisely the "appropriate legislation" that the 15th envisions. You can argue, and some do make this argument, that gay marriage is a 14th Amendment issue, based on the Equal Protection clause. Well, maybe. But there's nothing as clear the 15th Amendment that involves gay marriage.

To me, the California case matters a lot more. In that case, a single judge on the 9th Circuit struck down California's Prop 8, which amended the state constitution to define marriage as one man, one woman.

You can argue that the judge is right and the citizenry of California was wrong to pass Prop 8. I find it pretty problematic, though. If a single federal judge can strike down a section of a state constitution and get by with it, it means two things:

  • A federal judge can be a king; and
  • State government is nothing more than an administrative entity.
Here's how I'd like the Supremes to tackle the matter.
  1. Go ahead and strike down DOMA. In retrospect, it was an overreach of federal power and now we can recognize that.
  2. Strike down the judge from the 9th Circuit because of his overreach and reinstate Prop 8. Then let Californians decide if they want to get rid of Prop 8 in the next election cycle.

What I fear is that the Supremes will just decide to rule on gay marriage itself and either invalidate the laws of the states that have it or compel the other states that don't to have it. That result leads to this generation's Roe v. Wade. We don't need that. Since I assume gay marriage will eventually win in the court of public opinion, it would be better if the Supreme Court let the court of public opinion decide the matter.

Not that I expect it to happen, of course.

This post was written by Mark Heuring and originally published on Mr. Dilettante's Neighborhood.

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Comments (7)

"We will eventually have gay

"We will eventually have gay marriage in this country. Whatever you think about the merits of it, it's going to happen, because young people are being taught that it is a civil right and have been taught that way for years."

They're being "taught" by whom? That sounds kind of accusatory.

Not accusatory

My son attends a metro-area high school. He's learned this in middle school and high school. My daughter is learning the same thing.

It's not an accusation. It's just reality.

Seriously? A single federal judge?

"In that case, a single judge on the 9th Circuit struck down California's Prop 8, which amended the state constitution to define marriage as one man, one woman." Huh? You mean Judge Reinhardt, writing for the majority of a 3-judge panel, and then the majority of the active judges on the Ninth Circuit who voted not to take the case en banc? (In fact, only 3 Ninth Circuit judges signed on to the dissent from denial of rehearing en banc.) And of course there was another federal judge involved at the District Court. Oh, and don't forget that Judge Reinhardt's panel put their case on hold and requested that the California Supreme Court resolve the state standing issue. Federal judge "overreach"?

But on the larger point, one of the jobs of the federal courts is to resolve cases in which a party believes that state law violates federal law. In resolving those disputes, the judges are not "kings"--they are doing their job under Article III, section 2, and Article VI, clause 2, of the U.S. Constitution.

Walker, not Reinhardt

The original judge in the case was Vaughn Walker, not Reinhardt. He wrote the original opinion. And his ruling, not the 3-judge panel's ruling, will be what the Supreme Court will take up.

There are a lot of "larger points" involved in what happened in California.

Seriously?

"And [Walker's] ruling, not the 3-judge panel's ruling, will be what the Supreme Court will take up."

No. That's not how it works. The Supreme Court granted a "Petition For A Writ Of Certiorari
To The United States Court Of Appeals For The Ninth Circuit." Not a petition for a writ of certiorari to the U.S. District Court for the Northern District of California.

They are taking up both

Technically you are correct, but the 9th was affirming the original decision of the district court, which is part of the 9th Circuit. And Walker's original decision, and the reasoning behind it, will certainly be an issue when the case gets to the Supreme Court.

Go back and read your original post.

One of your takeaways was: "If a single federal judge can strike down a section of a state constitution and get by with it, it means . . . [a] federal judge can be a king."

Your point was that Judge Walker is a "king," even though his opinion was scrutinized, evaluated, and substantially narrowed by the three-judge panel on the Ninth Circuit, which also sought out and received a ruling from the California Supreme Court. The three-judge panel's opinion was then scrutinized and evaluated by all 28 active judges on the Ninth Circuit, only three of whom openly disagreed with their peers who voted to deny en banc review. And now, for Judge Walker's ruling (or what's left of it) to stand, it would need to be affirmed by a majority of the justices on the Supreme Court. If you really think Judge Walker is a "king," then you and I have very different understandings of that word.

As I said in my original comment, that's not overreach. That's just the federal court system doing its job.

By the way, the petition for certiorari in the Prop. 8 case mentions Judge Walker's opinion in just one paragraph, as part of the recitation of the procedural background of the case. It's not a foregone conclusion that Judge Walker's original decision/reasoning will be "an issue" before the Court. Yes, it's part of the record, but not necessarily "an issue," particularly because the Ninth Circuit didn't rely on Judge Walker's findings of fact.