Today the Supreme Court will hand out their decision on California’s Prop 8 and section 3 of DOMA (or theoretically the entire law, I suppose).
The Court has shown recently that it’s willing to rule narrowly on many of the landmark cases. The affirmative action and Voting Rights Act were ruled as such in the last few days, and unless we see a liberal majority (perhaps joined by Kennedy and maybe the Chief Justice), I expect that will remain the trend.
I think it is at least somewhat unlikely that anyone is going to come out of tomorrow completely satisfied. There is the very real chance Prop 8 is upheld. There is also the chance is ruled unconstitutional, but narrowly limited to California, meaning no other anti-gay marriage laws are struck down). I don’t really see how section 3 of DOMA stands, given the implications in states that have legalized marriage, but the Court could potentially punt it back to Congress.
At the same time, the Court could go completely wide on their ruling and stuck down all the laws banning same-sex marriage as well as the entirety of DOMA. Highly unlikely, I think, but it is possible.
Once all is said and done, we may disagree with the ruling, but we should not question that integrity of the Court. The fact is, even if everything is upheld (the worst option) today, it’s not the end of the story. There are still legislative options to pursue. Legalization will take longer, but history is now fairly firmly on the side of same-sex marriage, and I think even the social conservatives know it.
I don’t think either side will help their case by engaging in a character assassination of the justices that rule in opposition to their preference. Don’t be that person. Take the ruling, indicate your acceptance or disapproval of it, and continue working to get your desired result some other way.
See you later today!
Here we go again! Today the media, no doubt feeling the need to amp up what were already interesting proceedings in the oral arguments for Hollingsworth vs. Perry, tried to make predictions on the ultimate ruling of the case, based solely on the questions asked by the justices to the lawyers from both sides.
The conclusion? That because some of the justices didn’t seem to be on board with a national ruling striking down laws banning gay marriage, that the case is somehow already decided. Notably, that commentary made by some justices, even those on the liberal wing, may indicate that they will rule to toss the case entirely:
As the Supreme Court on Tuesday weighed the very meaning of marriage, several justices seemed to have developed a case of buyer’s remorse about the case before them. Some wondered aloud if the court had moved too fast to address whether gay and lesbian couples have a constitutional right to marry.
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy, who probably holds the decisive vote.
Justice Sonia Sotomayor said there may be value in letting states continue to experiment. “Why is taking a case now the answer?” she asked.
These and other comments were used to pound the message that basically said: “It’s already doomed.” Of course, that’s hogwash. It’s not doomed because no votes have been taken and no opinion has been written. And it’s not doomed even if the justices toss the case. That’s because there’s a few ways the case could be decided (major hat tip to Doug Mataconis at Outside the Beltway and Tom Goldstein of SCOTUSblog):
(Cross-posted from Poligazette)
Liberals are shocked! Shocked, I tell you. Why? Well, a recent Supreme Court concurring opinion to a ruling that will allow patients to sue drug companies for injuries related to the drugs was written by none other than Clarence Thomas, that avowedly conservative justice.
Of course, without even having to read his opinion, this LA Times article tells you all you need to know about why Thomas supported the right to sue. In short, he supports state law:
Four years ago, for example, the court, with Justices Antonin Scalia and Anthony M. Kennedy in the majority, upheld the power of federal agents to raid the homes of Californians who grow marijuana for their personal use — legal under state law but not federal law. Thomas disagreed. […]
“If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything,” Thomas wrote in dissent. ” . . . Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens.”
Basically, Thomas is a federalist, a supporter of limited federal government interference into state affairs. So, knowing this, his concurrence with the majority isn’t so surprising.