Hello, readers! I hope that the holidays treated you well, and that you’ve adjusted to life in the brave new world that is 2013 with little difficulty. I myself have been enjoying my break, but it’s time to get back into the swing of things. If the Supreme Court has, then I shall, too! On Monday (January 7), the highest court in the land announced the oral arguments it would hear for the sitting beginning on March 18, and three cases stood out to me. Two other cases have garnered a lot of attention, though, and these are the two same-sex marriage cases are on docket: Hollingsworth v. Perry, which deals with California’s Prop. 8, and United States v. Windsor, which addresses the constitutionality of the Defense of Marriage Act. (For more information about both cases and my view on the constitutionality of both Prop. 8 and DOMA, see my previous post, “What’s the Deal with DOMA (and the Supreme Court)?”)
I’m stressed out about these cases and probably will be until a decision is handed down. Why? Because here’s the situation surrounding these two cases…
1. They’re “huge,” in the sense that equality for same-sex couples is a major social issue right now, and will attract a lot of public attention, much as the Health Care Cases did last March. The arguments are taking place at roughly the same time the Health Care arguments occurred last year, and I’m sure they’ll be just as publicized. With last year’s Health Care cases there was a great deal of media coverage and a great deal of speculation, and the partisan attitudes surrounding the cases reached such a pitch that it was turned into an issue of Democrats versus Republicans, not an issue of constitutionality. This kind of media frenzy is good in the sense that it forces the public to scrutinize the Court and its behaviors, but destructive in the sense that it becomes impossible to view the Judicial Branch as something impartial and separated from the day-to-day politicking of the other two branches.
2. They’re going to be rough-and-tumble, 5-4 sorts of decisions, and I say rough-and-tumble in the sense that oral arguments will probably be fairly heated, and the losing side will be angry indeed (see Justice Scalia’s dissent in Lawrence v. Thomas, as discussed in a previous article of mine). These sorts of cases are extremely divisive, and the results inevitably cause friction and bad feelings in both the small amphitheater of the nine justices and the wider universe of American politics. Remember Citizens United and its subsequent political fallout? The issue of gay rights is perhaps the most factious and discordant social problem in this country at the moment (besides gun control, due to recent tragic circumstances), and whichever side loses will be outraged and angry for some time.
3. The stakes are maddeningly high. The outcome of these case will either be a major victory for or a harsh blow to the gay community, who have been fighting for equal rights and equal treatment in a society that once refused to acknowledge their existence. Many people’s lives will be affected by the decisions in Hollingsworth and Windsor, and just as America was balanced precariously between prejudice and progress during the time of Loving v. Virginia (the case that declared interracial marriages constitutional), our country stands at a similar crossroads with these two cases.
4. It’s uncertain how the case will be argued. This is perhaps the most important factor of all–what justification will each side try to use? Whether the statutes are upheld or declared unconstitutional, the argument laid out in the majority opinion will determine how consequences of the decision are applied to the rest of the country. If, for example, the statutes are upheld, the opinion could then use some provision of the Constitution to apply a ban on same-sex marriage so broadly and so strictly that there would be no hope for homosexual couples. A less severe version of this outcome might occur, though, if different constitutional scholarship is applied. It all comes down to which justice writes the opinion, and what information each side presents during oral arguments.
Things get somewhat tricky here because homosexuals are mentioned nowhere in the Constitution. As such, these two cases have been based around the Fourteenth Amendment’s Due Process and Equal Protection Clauses, which, as described in my earlier article about DOMA, are wrapped up in varying levels of constitutional scholarship and precedent and, in my opinion, are difficult to defend due to the vagueness of the “rational basis test.” Loving v. Virginia was decided using Fourteenth Amendment rational basis scholarship, but that was during the Warren Court’s civil rights heyday in the 1960s and justices today might not swing for that sort of thinking. (“HOORAY,” shout all anti-gay individuals, “TAKE THAT! You can’t protect same sex couples now!”)
This problem works both ways, however. (“Wait, what,” the anti-gay individuals look to each other in anger and confusion, “how does that help the pro-gay side?”) There is no article or amendment in our United States Constitution that forbids same-sex marriage; as such there is no explicitly stated, anti-gay statement in the Constitution that anti-gay side could use to claim constitutionality of Prop. 8 and DOMA. In fact, much of the opposition to homosexuality stems from deep-rooted religious beliefs, or perhaps the feeling that homosexuals are “different” and therefore “inherently bad.” Separation of church and state exists in this country (or it does, at least, in theory… here’s looking at you, Pledge of Allegiance and all of our country’s currency), so religious arguments cannot be used to support the two statutes in question.
I’m not aiming to construct the argument for either side, though (once again, see my previous DOMA article for a taste of that), so it’s about time to wrap this discussion up. My parting gift to you is just a little bit more stress–Anthony Kennedy. There’s no way that Chief Justice Roberts will pull what he did with Health Care in these circumstances, and Justices Scalia, Thomas, and Alito wouldn’t be caught dead supporting gay rights. The quartet of liberal justices–Justices Ginsburg, Breyer, Sotomayor, and Kagan–will all probably vote in favor of the case, unless I’m majorly off base and out of touch with the justices’ philosophies. That leaves Justice Kennedy, the World’s Most Famous Big Shot Swing Vote, and while he sided with the liberals in Lawrence v. Texas, which invalidated laws that criminalized sodomy and Romer v. Evans, which invalidated an amendment to the Colorado Constitution that barred gay individuals from bringing discrimination claims to court, he sided with the conservatives in Boy Scouts of America v. Dale, which barred all homosexuals from becoming scoutmasters. I’m not sure where he’ll stand on the specific issue of same-sex marriage, and his immense power over this case is what scares me the most.
As a final note, if you’re looking for something that’s a little less Civil Rights and a little more Election Law, on the first day of March hearings there’s another case, Arizona v. Inter Tribal Council of Arizona, which addresses the contentious issue of “voter-ID” laws. Many opponents of voter-ID laws say that the identification requirements to register and vote are disenfranchising, so while this case might not be as “hot topic” as the two same-sex marriage ones, it’s going to have a major impact on the elections process in the future.