GAY MARRIAGE: Predictions of Upcoming Rulings and Where We Go From There.
Watching the drama regarding the U.S. Supreme Court’s potentially life changing decisions that will come up this week, I’m going to go out on a ledge and make my two cent’s-worth prediction of how it will likely turn out. I also want to put out the idea of how to continue the battle for equality because no matter how the justices rule in the two big cases, the war will be far from over.
Proposition 8. I predict Proposition 8 will fall and same-sex marriage will once again be legal in California. However, I have misgivings that the ruling against Proposition 8 will be from any specific decision from the Court regarding the constitutionality of the law. I believe the justices will wiggle off the hook and determine that the parties defending the law as valid and allowed to be restrictive against same-sex marriage have no standing in the case. This means that Proposition 8 had no direct effect on them in any positive or negative sense, other than being haters of homosexuality in general. They had no business getting involved. I think this ruling will also only apply to California and will not affect any other state. The no standing decision will allow previous lower court rulings that Proposition 8 is already unconstitutional to remain in effect and would kill it altogether. The governor of California has indicated he would allow the unconstitutional ruling to stand. Thus, gay Californians will again be allowed to get married as soon as the legal details are hammered out…probably no later than the first of the year.
Defense of Marriage Act (DOMA). I’m going to be idealistic and predict that the justices will strike down DOMA as unconstitutional. However, the only part of DOMA that was argued over was Section 3 which concerns mainly financial benefits provided by the federal government. It has nothing much to do with current state laws or benefits. Therefore, the ruling against DOMAs Section 3 will only affect people that live in states that already allow same-sex marriage. They will have the benefit of filing joint tax returns and claim social security with the federal government. The justices will likely avoid any sweeping ruling that will affect people that live in states that forbids same-sex marriage. I believe that the rest of DOMA will remain intact and the justices will want to wait and watch how the states make their individual choices as the years crawl by. However, there is also a question of whether the parties that argued against striking down DOMA have any standing either. The Obama administration refused to defend DOMA and it was taken on by ultra-conservative Republicans, which again, boils down to a group of haters. Ruling against standing would essentially put the fight back to square one and not give any decision at all and would let the law stand as is. That is not what I (idealistically) predict will happen. The arguments against DOMA were hopefully compelling enough to force the justices to decide something.
Where the Fight Goes From There
I believe the Supreme Court Justices want to avoid any sweeping national rulings. They live in fear of creating another generational backlash such as the 40-plus year ongoing fighting revolving around Roe v Wade and abortion rights. They would prefer to let the states continue to make their own decisions and only weigh in with national rulings once a vast majority of them have decided to allow same-sex marriage, such as Lawrence v Texas that overturned the few remaining anti-sodomy laws. They would probably be happy to be either long retired or dead from old age before deciding such a landmark case and leave it to future justices not yet born. That way of thinking, however, is flawed because no one is asking for permission to end anyone’s life. What is being asked for is a basic human right to celebrate life and commitment; one on one, two people, no animals. Unfortunately, ultra-religious zealotry has too great a hold on many voters and politicians in this country and a state-by-state majority is not likely to ever exist. Therefore, regardless of the outcome of the above mentioned two cases, the fight must remain focused on the national constitutional level. And that isn’t going to be easy or fast.
Two-Pronged Attack. There are two specific areas of the U.S. Constitution that could be helpful in arguing for same-sex marriage and both should be challenged. One is the 14th Amendment which includes the Equal Protection Clause. This clause essentially was written to ensure that states did not deny one group privileges while allowing the same privileges to another group. This clause was originally meant to give equal standing to blacks in America as whites after the Civil War. Over the years, it was read to also mean “separate but equal” was allowable and resulted in “whites only” or “coloreds only”(the standard wording of the time) separation in restaurants, trains, schools, etc. Finally, that standard was seen for the true discriminatory practice that it was and was abolished by successive Supreme Court rulings. It has also been used successfully to extend rights for people that wished to marry if they were of mixed-race, women’s rights, and anti-homosexual sodomy laws such as Lawrence v Texas. There is no reason to believe the same arguments could be successfully made for same-sex couples and marriage. There are some cases pending now using this argument that are winding their way through the court system. The more cases that are filed could hopefully result in the Supreme Court choosing at least one to decide.
The second constitutional challenge should revolve around the Full Faith and Credit Clause in Article IV, Section 1 of the Constitution’s main original body. This clause generally says that if one ruling or contract is valid in one state, it is valid in another. It has been used to enforce deadbeat dads who may owe child support and move to a different state to pay support owed, rulings of protection against abused women, and family law such as same-sex adoption legal in one state but not so in another. Since states such as New York allow mainly clerks and judges to perform gay marriages, the argument could be made that they are a judicial ruling and therefore valid in another state that does not allow gay marriages.
More importantly, it could be used to challenge a possibly remaining Section 2 of DOMA which specifically allows states not to recognize a legal same-sex marriage from one state to another. Because states that allow same-sex marriages to be performed by judges, they look like a judicial ruling to me. This strategy has not yet been tested but I believe it to be a valid argument. The more cases filed, the better the chances of a Supreme Court hearing. Unfortunately, it would possibly still take years to get to them. The current justices will likely get their wish and no longer be on the bench when these cases do come up. Hell, I sometimes wonder if I will still be here to see it.
So…what do you guys think? What are your predictions and ideas?