Tuesday, March 26, 2013

Observations 3.26

At 10 AM this morning the Supreme Court of The United States will begin hearing arguments in California's Prop 8 case. They are scheduled to last one hour, give or take, with arguments in the DOMA case scheduled for Wednesday at the same time. Transcripts are supposed to be released no later than 2 PM both days and I'll pass along links when I have them. Decisions in both cases probably wont be announced until the end of the court's term which, one way or another, will make the end of June rather interesting. Not too any years ago I wondered if I would see legal same sex marriage across the country in my lifetime. Now, other than the flyover belt of the country, I wonder how soon I will see it become a reality. At the end of June I may just find out.

I thought I should throw my opinion out there before arguments start on the remote chance that at some point I'll be able to say I told you so.

The main argument against same sex marriage now comes down to that marriage is between a man and a woman because it "furthers society’s vital interests in responsible procreation and child rearing." That is it, that is their argument. Narrowly the worst case scenario is that the court takes the position that the constitution has no position on the issue thus leaving it completely to the states. It will in no way decide that same sex marriage is unconstitutional because it can't without destroying the right's beloved states rights position. This decision would allow Prop 8 to stand and set in motion a vote to repeal Prop 8 in a state where same sex marriage now is favored by 67% of the voters. In California it's only a matter of time.

The other extreme, and to me just as unlikely, is that the court makes some sweeping decision that hypothetically legalizes same sex marriage nationwide. In all honesty this may be worse than the worst case I just mentioned because, while a reason to celebrate, it would just crystallize opposition from every direction. At the same time this possibly the best result for the Republican Party. Anybody in the party with any kind of sense could walk away from a no win issue, than again this is the Republican Party where common sense is currently in a limited supply.

What remains are the two middle options where I think the decision will fall. The first possibility is to simply uphold the decision of the Ninth Court of Appeals which says California, or any other state, can't take away a gay persons right to marry once the state has given them that right. At the time of the Appeals Court's decision it was thought Judge Reinhardt wrote it with SCOTUS in mind. This is the easiest way for Chief Justice Roberts and Justice Kennedy to rule in favor of same sex marriage in California and not have it effect the rest of the country. Along the same lines the court could simply dismiss the case allowing the Ninth's decision to stand as is.

But I think Roberts will do more as he did in ruling Obamacare was constitutional. John Roberts is a student of SCOTUS' history and sees his position as Chief Justice as caretaker of the court's legacy. With the rest of the government SCOTUS lives in a bubble but in the court's case it can be a very leaky bubble and public opinion has shifted twenty percent since 2008, Roberts knows this. Roberts also knows he will be on the court for a long time, he is 58, and probably doesn't want to be remembered for a decision that became meaningless while he was still on the court. It's probably just my gut feeling but I think Roberts and a majority of the court will go with the option favored by the Obama administration and rule that a state can't deny the word marriage to gays while granting them all the rights of marriage in civil unions. This decision would effect the states of California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island, and Colorado.

History is a fickle thing but when its time comes nothing can stop it. Whatever the court decides I think history's time has come and sorry will be those on the wrong side of it. I just don't think John Roberts will be one of them.

update - Here is the link for the audio of this morning's Prop 8 hearing at the Supreme Court. The text should follow but I'm not sure when.

update 2 - I'm a little slow with this but here is the link to a pdf file of the hearing transcript. While I'm at it here is a link to SCOTUSblog which is a very good site to find out what is going on at the court.