Monday, June 17, 2013

Waiting for the court

By Mustang Bobby

There is a chance that the Supreme Court will hand down rulings today on the Defense of Marriage Act (DOMA) and Prop 8 cases. Mondays are usually good for Court rulings, so it will either be today or a week from today.

There are any number of ways the Court could rule on DOMA. They could go full tilt and overturn it completely, saying that federal law has no business dictating to the several states how to define marriage, or they could overturn the section of the law that denied marriage benefits to a legally married couple in New York, which was the basis for the suit in the first place. Or they could not rule at all, leaving the lower court rulings in place. Not being a lawyer or a dug-in Court watcher like SCOTUSblog, I have no tea leaves to read and report on, but my gut tells me that the Court will come down narrowly on the side of tossing DOMA to the point that it is basically ineffective and unenforceable. I’m guessing 5-4 with a vehement dissent from Scalia who will carry on like a diva about how the homosexual lobby has driven the Court to a politically correct ruling. (After Bush v. Gore, irony is not Justice Scalia’s strong suit.) I don’t hold out much of a possibility that they will leave DOMA intact. They would not have waited this long on that ruling.

As for California’s Prop 8, the Court could go the same way as DOMA: they could rule that the voter-approved ban on marriage equality in California violates the equal protection clauses of the U.S. Constitution and thereby reinstate the 2008 California supreme court ruling that marriage equality is permissible in the state. If they narrowly apply that ruling — meaning it is specific only to the case in California — then marriage equality would be the law there and only there. Or they could rule that bans on marriage equality violate the equal protection clauses, thereby overturning them in the states that provide for civil unions but not marriage, which would only apply to those states that have civil unions. Or they could rule that all bans on marriage equality are unconstitutional and overturn every state law prohibiting it, much as they did with Loving v. Virginia in 1967 that ruled bans on interracial marriage anywhere were unconstitutional, not just in Virginia. Or — and here’s the out for the Court — they could rule that the party suing to keep the ban in place did not have standing to sue, which would mean the case would be tossed and the lower court ruling — in favor of marriage equality — would stand. A punt win for equality.

Again my gut tells me that it will be a narrow ruling, holding 5-4 in favor of marriage equality, but only for the state of California, again with an intemperate dissent from the right wing of the Court. I doubt that they will have the courage of their predecessors to impose the ruling across the country. They’ll go states-rights on this one because they think that the LGBT community has enough political clout to get marriage equality passed without their help. (If that was true, then why would the cases have been brought in the first place?) Like DOMA, I don’t think they’ll rule completely in favor of leaving the ban in place. As for the lack of standing ruling, I doubt they would have held that back until now; they would have handed that one down a lot sooner.

So that’s what I think, based on nothing more than watching the Court from a distance for the last 45 years or so, and I pretty much nailed it a year ago on Obamacare. The kicker is that if the Court rules today, I won’t be able to blog about it until I get home tonight. That’s one of the reasons I tried to cover all the bases. I know I missed something, and they’ll probably rule on a part that I missed. So sue me.

If there is no ruling, I’ll be back with another SCOTUS post next Monday, which is most likely the last day the Court will hand down rulings, including the ones on the Voting Rights Act and Affirmative Action. Stay tuned.

(Cross-posted at Bark Bark Woof Woof.)

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