Friday, June 28, 2013

So What's Next?

Because of the Supreme Court's muddled and  inconsistent reasoning on the two recent cases involving same sex marriage, a strange state of affairs results from its decisions . In every state citizens may either through state laws or amendments to state constitutions determine which kind of marriages their state government will recognize save one-- California. In California, state law does NOT recognize marriage but the federal law, through the Court's application of the 14th amendment, federal law DOES protect it. Same sex couples in the remaining 49 states do not enjoy the constitutional protections  that those in California enjoy. In 12 states the laws recognizes same sex marriage; in 37 states, the laws do NOT recognize same sex marriage. (six states prohibit it by statute; 29 prohibit it in their constitutions.)


As confusing and arbitrary as these circumstances appear, they do not trouble the justices on the Court. The Supreme Court will clear it up in the next couple of years by nationalizing same sex marriage.

 Justice Kennedy in his dissent from the majority on the Proposition 8 case gave some sound legal reasons why the Court should have granted the private lawyers defending the California initiative standing to argue the case before the Court. He probably entertains some other not so legal reasons,  however, to hear the case: he wants the Court  to establish the constitutional right of marriage for same sex couples and he wants to  write the majority opinion.

The rest of the court, however, is not quite ready. Making such a rule now would throw out state statutes and state constitutional amendments restricting marriage to heterosexuals  in 37 states. The Court wants to avoid as best they can the political and social conflicts that other controversial decisions have ignited. They all remember what happened to the reputation of the Court in the decades after they threw out death penalty statutes and statues outlawing or restricting abortions.

The Court will play a waiting game to see how many more states will enact legislation recognizing same sex marriage. At some point, the Court will accept an appeal from some same sex couple whose state forbids them from marrying. They will overturn all state laws restricting marriage to heterosexuals.

It's a strange way to amend our constitution. According to its provisions, a constitutional amendment requires the approval by 3/4 of the states after an amendment has been proposed by Congress through a 2/3 majority vote.

This, too, does not trouble the justices of the Court.

Now that the Supreme Court has ruled that democratic majorities cannot enact laws reflecting their moral judgments when those laws infringe upon the Court's self-proclaimed prerogative to assert its own moral authority, should anyone be surprised?

1 comment:

CW said...

Great observations, V.L.

I think you're right about your predictions on where this is all going.