Educated guessing about the Supreme Court’s disposition on Prop 8

27 Mar

After listening to the oral arguments yesterday, there seemed to be one theme that ran throughout the questioning.  From Ginsburg to Sotomayer to Roberts to Scalia to Alito and most importantly, to Kennedy, it was simply this, why should we nationalize same-sex marriage by judicial fiat TODAY?  After all, both sides agree that marriage is not purely a private affair, but is a public good subject to public constraints; the “right” to marry whoever you want for any reason you choose is not found in the constitution and has never been deemed by the Supreme Court as fundamental in an unqualified sense (worthy of “strict-scrutiny” analysis, a kind of legal analysis that places the burden of proof on the discriminatory statute rather than the challenger to the law); the social science evidence on the effects of gay marriage on children is simply either too unclear or too new to draw definitive conclusions (conclusions that easily can be drawn, by they way, regarding every other legal alternative to natural families); gay couples in California enjoy virtually every other benefit of marriage except the legal designation already; even the challengers of the Prop 8 agree that the Court could rule narrowly (and practically invited the Court to do so during orals), in such a way that limits its decision to the situation of California and not other states.  Given these agreed upon points, and assuming as he usually does on divisive civil liberties cases that Anthony Kennedy will be the swing voter, one could reasonably predict that Prop 8 will be upheld because of the apparent attitude of Kennedy.  He said at one point what may (speculation here) reveal his disposition (from the transcript):

Kennedy: …there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.  On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

It may be pretty unprincipled, it may be flatly utilitarian (something is right or constitutional in this case if and only if the consequences satisfy us).  But Kennedy, the all important Kennedy, seems to be suggesting that since all parties agree on the list I gave above, especially the ambiguity and/or immature nature of social science evidence, why should the Court decide this matter instead of the more deliberative better equipped branches, the people’s legislatures?  He could have added that if public opinion is shifting, is it the business of the court to get out in front of it or defer to the branches who are explicitly charged with being responsive to public opinion in the first place (this point was, in my opinion, too briefly brought up by others in the oral argument).

Though not a “swing” voter usually, Justice Alito sums up what may be a compelling and persuasive argument for judicial deference or restraint among other justices here:

 Alito: You want us to assess the effects of same-sex marriage, the potential effects on — of same-sex marriage, the potential — the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the — the concept of — of same-sex marriage.  The one thing that the parties in this case seem to agree on is that marriage is very important.  It’s thought to be a fundamental building block of society and its preservation essential for the reservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.  But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future.  On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?

I wouldn’t be surprised if one of the other more liberal justices adopts a modified-restraintist position.  Even liberal justices don’t usually want to be labeled “activist” (overturning democratically passed legislation).  And in this case, it seems they could avoid that label without causing too much harm to their personal political preferences (more and more states are passing SSM, California’s laws, such as legal gay adoption, already are quite liberal on this issue, and they can clearly see the national debate moving in the direction of favoring SSM anyways).  In other words, there very well may be plenty of good reasons to rule narrowly, cautiously, even for liberal justices, while still achieving in the long-term any personal goals of redefining marriage in American society.

But alas, one must not read too much in to oral arguments, since questions may mean more, a lot more, than simple self-disclosure of personal opinion.  We shall see.  (there are more oral arguments today on the Defense of Marriage Act).

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One Response to “Educated guessing about the Supreme Court’s disposition on Prop 8”

  1. yiyime March 27, 2013 at 8:41 am #

    Since we are all humans and are demanding our rights..it is surprising to me that each person needs or wants their rights which might be different than other’s rights and no one has stop to think that in order for everyone to have rights these can not be had without infringing on someone elses rights!

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