This will be the last post of my Series on Same-Sex Marriage. I decided to leave the legal aspects for the end because in about two months the Supreme Court of the United States will decide two very important cases regarding this subject, Hollingsworth v. Perry and United States v. Windsor. Even though these cases are very different, the first one deals with California’s Proposition 8 and the other one with the Defense of Marriage Act or DOMA, they are both related to same-sex marriage.
The court could choose a broad or narrow ruling in the first case. It can say that California cannot ban same-sex marriages, while leaving unanswered the question for other states or the justices can say that shunning same-sex couples from marriage violates the Equal Protection clause of the 14th amendment of the constitution, this will mean that no state can deny homosexuals the right to marry. In the DOMA case the court only has to deal with a single federal law which prevents the federal government from recognizing same-sex marriage licenses issued by individual states.
In the first case the justices will probably take the easy way out and dismiss the case because it lacks standing or make a narrow ruling applying only to California, I don’t think any justice wants to tell Alabama it has to issue marriage licenses to homosexuals. Some of the justices expressed a sentiment shared by many people around the country, that this question should be solved through the political process not through the courts and that states should be the ones to decide. Same-sex marriage in California will, more likely than not, remain legal, regardless of the court’s decision.
The case of DOMA seems like it will be a victory for defenders of same-sex marriage. The federal government has typically stayed out the marriage issue. If a state decided to allow same-sex couples to marry then the federal government should recognize that union showing respect for state’s rights. This should be an appealing idea to the conservative members of the court who are known for their defense of state’s rights. Jeffrey Toobin seems to get this one right when he says that “DOMA is doomed!” The fact that DOMA was drafted with the intent of discriminating against homosexuals, this can be seen from the debates which took place in the House of Representatives before passing the law, makes it harder for the court to uphold it.
Is it the job of the SCOTUS to wonder if a law does harm or good to children, or if it will be seen differently in different parts of the country? From the oral arguments one gets the idea that it is their job. In my opinion the justices should not be concerned with these questions. The attitude I would like to see from the SCOTUS is one similar to that of Hawaii’s Supreme Court “Whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it… works well or works ill presents a question irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional.”
Whether I think banning same-sex marriage violates the Equal Protection clause or not is irrelevant, since the justices will decide these cases more on the basis of their own beliefs and ideology rather than on constitutional analysis.
The conclusion which can be reached from these two cases is that same-sex marriage is being accepted by more Americans everyday. The court has seen this trend and will probably think it wise to stay out of the debate. Letting opponents and supporters keep their fight in the political arena instead of bringing it to the legal one.
Eclectic Affinities 