March 26, 2013

Will SCOTUS decide not to decide Prop 8?

That appears to be the fervent hope of one New York Times guest columnist.

Who amazes me, by showing that a law professor can so blatantly let the emotions of wishful thinking trump rational thought processes.

If the Supreme Court really wanted to dodge the issue for now, it could have simply refused to grant certiatori on the case on the first place.

But, instead, the Chicago Black Sox Nine in Black have decided they want to say something, whatever that "something" turns out to be.

As I've said before, the "target" and kingmaker is Justice Anthony Kennedy. The Obama Administration showed that in its amicus brief.

Here's the heart of the amicus:
The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.” 

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” 

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.” 

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases. (That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996.)
Will Kennedy mind being referenced so directly? Actually, he may be flattered; he's got one of the bigger egos on the court.

That said, will the trick work?

I'd say yes, in part because the Administration narrowly tailored the amicus to the state (pun intended) at hand, rather than going national.

I predict Kennedy votes as part of a 5-4 majority to boot Prop. 8. And, even if the ruling is tailored to California, it will be a precedent of sorts.

Some indication of how Kennedy may be leaning might be inferred from the Nine giving the Department of Justice speaking time on its amicus brief.

Meanwhile, per Lyle Denniston and others, it looks like DOMA is toast, toast, toast. Again, Kennedy seems to be leading the charge on killing it in some way, shape or form.

Per Denniston, though, the "killing" could be even narrower than the Court's Prop. 8 ruling. As he notes with DOMA, the issue hangs on what level of "scrutiny" sexual orientation should get from the court. For example, racial-related issues get "strict scrutiny" while gender-related issues get a somewhat looser "high scrutiny." The Court has never ruled what level of scrutiny should attend sexual orientation cases.


Meanwhile, further thoughts per my previous touting of Kennedy's vote. Flipping religious right arguments on their head, he asked whether kids of gay parents might not be harmed by blocking the parents from getting married. 

Michael McConnell has a different tack. He notes that SCOTUS could, in the Prop. 8 case, find that the Californians suing to uphold it don't have legal standing. It seems to be a a strong argument legally, but I think actually suffers the same problems as Cole's top-linked column, or at least similar ones.

None of the lower courts even considered the "standing" issue. Frankly, I don't think the plaintiffs do have standing, but, if the lower courts haven't raised this issue, it would seem weird that the Supremes would now inject it.

Second, a denial of cert would have been an even easier route to take to kick hard decisions down the road.

So, bottom line is that the Nine in Black won't do what McConnell wants, or Cole.

So, what will happen?

I predict the court will take a middle ground, ruling Prop. 8 unconstitutional while paving the way for some sort of quasi-precedent on the DOMA case and how it affects states that have civil unions but not gay marriages.

And, general papers like the New York Times and insiders like The Hill both indicate that SCOTUS appears likely to rule against Prop. 8, but to keep a fairly narrow ruling. Whether it's California-only, or the "middle ground," remains to be seen.

Meanwhile, Team Obama is still chickenshit on DOMA. It will no longer defend it, but it won't give back Ms. Thayer's $360,000 in federal taxes she had to pay because she wasn't legally married. 

This all misses the bigger issue, and that's the "full faith and credit" clause of the Constitution. What happens when a gay couple married in Massachusetts moves to a "red" state that bans gay marriage, but has different state income tax rates for married couples filing jointly, like the federal tax returns? Or bars a gay spouse from a hospital room? Etc., etc.

At some point, the Nine in Black will have to tackle that issue.

And, assuming I'm right, fellow people concerned with gay rights should stop cringing so much, unlike Cole and McConnell.


And polls, even at Faux News, show that gay marriage opponents are a minority, and one that's growing ever smaller.

At the same time, that research shows that the South is hugely anti-gay marriage, so hugely that it can't be all white opposition. It has to be blacks, too.

This again goes to Prop. 8, and some PC liberals wanting to say black opposition had nothing to do with it losing. Bullshit. Sorry, but that's what it is.

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