I have a poor record for predicting what the courts will do; I like to think positively, and believe all will work out. But after last year’s tortured ruling on Obamacare, all bets are off. I can’t predict. The oral arguments are almost certainly after the fact of the justices making their individual decision. They have already begun drafting their opinions. So all I can do is summarize the issues.
The two cases both deal with the definition of marriage, but
ask different specific questions of law. The Prop 8 case is about whether the
people of a state have a right to decide to keep the definition of marriage it
has always had, or will have a redefinition forced on them by judges. The
decision might avoid an actual decision by deciding the defenders of Prop 8
have no standing, which is a catch 22 situation. The people used the initiative
process to override state-imposed changes against their will. Then the state
refused to defend the people’s vote against the judges who overruled the
people. To say no one but the state has standing leaves us asking, who can be
the advocate of the people against the state?
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| Photo credit: npr.org |
If the case is thrown out, it will only affect the state of
California, with all the real issues still up in the air. But it also means the
people have no recourse against a tyrannical state. Still, I think it’s
unlikely the Supreme Court will use this case to announce a new unwritten
“right” to same-sex “marriage.”
The DOMA case is about whether defending the long-standing
definition of marriage is constitutional. The main question here is, when/how
did the millennia-old definition of marriage become unconstitutional? A
“right,” by definition, means God granted it, and it is just a matter of the
state being prevented from infringing on that right.
If the court decides there is a right to marry (to be
granted all legal and society honors) based on having a sexual relationship of
one’s choice, why would it be constitutional to refuse to grant those same
marriage honors to people who want to marry more than one at a time, or someone
who is a close relative, or someone not alive, or someone nonhuman, or someone not
of age? That is the slippery slope argument. The only defense to it is, “There
is no slippery slope. We’re not talking about that; we’re only talking about
the rights of same-sex couples.” And if you refuse to look at the argument, you
submit yourself to being surprised by the slippery slope, which logically
follows.
The argument against DOMA in the 90s was that it wasn’t
necessary, because no one was even considering threatening the definition of
marriage. Today’s arguments are equally disingenuous. Taking fidelity,
permanence, and family establishment out of the definition of marriage, and
pretending it has always been just a love thing, just honoring two people who
have chosen to have an emotional connection for the time being, does not
benefit society, and it certainly doesn’t leave marriage and family unharmed.
The DOMA decision hinges on rationality. Is there a rational
reason to define marriage as it has always been defined if that prevents some
people from enjoying the benefits of marriage? The threshold is actually quite
low; if a single rational person can be found to have a single logical reason,
then it is not irrational to uphold the law. The other side has to prove that
there is no rationale for preventing marriage benefits from being extended to
people who don’t currently meet the requirements for marriage.
It should be an easy decision, because family, fidelity, and
permanence are all outcomes of the marriage contract that have an
extraordinarily long history of benefit. In order to rule against DOMA, a very
few states get deemed “rational” while the majority of people in the vast
majority of states are deemed unreasonable—and bigoted hatemongers to boot.
But in political bodies (and the Supreme Court is
unfortunately political, against design), simple facts get obscured behind other
motivations. The opposition to the defense of marriage have enlisted a willing
media in framing the argument as a civil right to marry—leaving out a great
many details: homosexuals are free to (and frequently do) marry a person of the
opposite sex like everyone else; there is no guarantee to anyone of marrying
the “person of their choice” if the person they choose is already married or is
a close relative, or is someone who doesn’t consent to marry them, or is
someone below the age of consent or is mentally incapable of giving consent,
and various other limitations.
I don’t think the cases available provide the possibility
that the Supreme Court can come out with a declaration that marriage must be
defined as it always has been not only by the federal government but also in
all the states. I think upholding DOMA would only affect definitions within
federal law, which leaves things the way they are now, with the possibility
that individual states can define marriage differently in contracts within
their states.
This is still problematic, because of the “full faith and
credit clause.” Generally, contracts made in one state are upheld within the
other US states. If you get married in Idaho, you don’t have to get remarried
if you visit or move to Virginia. But, in the case of marriage, if a state
grants all the rights and title of marriage to a same-sex couple, and that
couple moves to a state that doesn’t recognize that change in the definition of
marriage, would that second state be forced to recognize the contract?
Thirty-one states have foreseen this scenario and have protected themselves,
beyond statute, by declaring the long-standing definition of marriage in their
state constitutions. Which makes it a question of sovereignty, so that a single
state doesn’t hold power without representation over the people of all the
other states.
Can same-sex couples move to these states and sue for
recognition of their contract? Yes, and that does seem to be a strategy.
Because of the deeply held beliefs—the strong rationale for marriage—it would
seem reasonable for such couples to either stay where they have a recognized
contract or assume that their contract is not binding. But instead of accepting
that limitation for themselves, they press for all of society to change. So
far, however, no case has made it through the lower courts to the point where a
test case could reach the Supreme Court.
My hope for the Supreme Court is that they are swayed by the
awareness that Roe v. Wade was not only bad law, it interfered with the
state-by-state working out of a divisive issue. The court, I believe, will try
to prevent such intrusion for now. I think they are likely to seek some
middle-of-the-road still indecisive decision.
On Prop 8 I hope they will find in favor of the people’s
law, but whichever way it goes, they are likely to clarify that the decision is
only pertaining to the people of California and their initiative process.
On DOMA, I think they should uphold, because to do otherwise
would be very disruptive to contract law and would be the most intrusive
decision. Even if I’m wrong, I think they will try to find a way to prevent the
decision from being a declaration of a new “civil right” for anyone to marry
anyone of their choice.
As with Obamacare, we’re trying to predict the minds of
Kennedy and Roberts. Kennedy tends to look consistently at civil rights
fairness, so it’s hard to know whether he will succumb to the drumbeat argument
of the opposition or consider the full meaning of the marriage contract. He is
an unknown.
Rumor over the weekend was that Justice Roberts has a
lesbian cousin who was sitting in his section during the hearing. I assume that
report is intended to cause us to believe that merely having a cousin with an
assumed opinion is enough to change the chief justice’s opinion on what the
Constitution says. I hope that isn’t so, but I offer no guarantees. Roberts
went way out of his way on Obamacare not to strike down the law. It seemed so
out of character that people have speculated conspiracy theories, that the
administration holds some piece of evidence (even if it’s something untrue and
manufactured) over him as a threat, so he must not cross them. Maybe so, but it
could be that he just personally seeks to avoid acting in a declarative way.
At any rate, it is unfortunate that the future of
civilization is on a knife edge, at the mercy of nine unelected political appointees,
two-thirds of whom are more likely to work toward their desired outcome rather
than declare what the Constitution says. (May Thomas, Alito, and Scalia live
long and healthy lives!)
On an ironic side note, on Sunday, March 24, about 300,000
protestors marched on the capital of France, in defiance of a bill sponsored by
their president that would allow same-sex “marriage,” which has already passed
the lower parliament. Even the people of France, where sex outside of marriage
has been considered a cultural norm for centuries, are standing up against the
imposition of the homosexual agenda.
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