On gay marriage, Supreme Court to weigh equal rights and states’ rights

19 Jan 2015 | Author: | No comments yet »

End near for Michigan’s gay marriage ban.

My initial excitement Friday about the Supreme Court finally agreeing to consider whether the Constitution holds a right to same-sex marriage was almost immediately replaced with panic.

THE US Supreme Court decision on Saturday to take up the unsettled question of whether same-sex couples have a constitutional right to marriage has thrown up a spectrum of possible outcomes ranging from decisive to messy. The trigger was the first of two questions the court will consider: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” “State” was what set off alarms for me. If the high court resolves the issue as expected in June, it could deliver a decision that has the benefit of largely neutralizing a debate that a majority of Americans believe Republicans are on the wrong side of — and well ahead of the party’s 2016 presidential primaries. To have the question disposed of and dispensed with, many Republicans say, could make their opinions on the matter largely moot, providing a political escape hatch that gives them an excuse to essentially say: “It’s been settled. The cases, from Kentucky, Michigan, Ohio, and Tennessee, are all appeals of a ruling last November by the Sixth Circuit Court of Appeals upholding the same-sex-marriage bans in those states.

In most corners of the party — and, notably, from those who are likely to seek the Republican presidential nomination — there was silence late last week. The desire to calibrate unremarkable and inoffensive responses shows how the debate over same-sex marriage significantly departs from other major constitutional questions on social issues like abortion and why, unlike abortion, it may not endure as an issue. Such an outcome would shut the door to gay marriage in those four states for the time being, said University of Minnesota constitutional scholar Dale Carpenter. A quick e-mail and phone call to Evan Wolfson, the founder and president of Freedom to Marry, put me at ease. “The bottom line answer to your question is that while states regulate marriage, they do so under the Constitution. Wade was decided in 1973, anti-abortion groups were galvanized to overturn what the court had done through either a constitutional amendment or the appointment of like-minded jurists on all levels of the federal bench.

Should the court uphold state bans in the cases before it, it could unleash a new round of litigation among the roughly 20 other states whose bans were struck down by federal courts. The court is expected to decide by the end of June whether any state can prohibit same-sex couples from marrying or refuse to recognize gay marriages performed elsewhere. The decision, written by Justice Anthony Kennedy, the key fifth vote, who is not usually associated with liberal causes but is a gay-rights supporter nonetheless, said that DOMA in effect “demeans” the plaintiff, “whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” Last October, the Court declined to hear appeals from five states where circuit courts had struck down bans on same-sex marriage.

In Michigan’s case, plaintiffs April DeBoer and Jayne Rowse, who also seek the right to jointly adopt the four children they have been raising together, will ask justices to reinstate U.S. Those cases, and the Supreme Court’s decision not to review them, not only sent a powerful message to the federal judiciary but also increased the number of states where same-sex marriage is legal. In any scenario, most legal observers say they think it’s unlikely that gay marriages that have already taken place would be invalidated, with the thinking that courts would be reluctant to forcibly divorce thousands of couples, said Professor Carpenter. Previously, some had expressed concern that a Supreme Court mandate for same-sex marriage would get out ahead of public acceptance. (Margaret Talbot wrote about this issue five years ago.) Thirty-six states would seem to be a large enough majority to assuage these fears.

On Saturday, there was some speculation that, with the phrasing of the second question, the Court may have reserved for itself the option of a more limited ruling, one that stops short of requiring every state to perform same-sex marriage. The Republican AG’s intractable position on this issue is nothing short of George Wallace standing in the schoolhouse door, keeping loving couples from marriage, keeping loving parents from the security of having full parental rights of their children, and maintaining Michigan’s reputation as a backward, unwelcoming place to live. Gore, in 2000, worked together on an ambitious attempt to make marriage equality the law of the land, even as marriage-equality activists argued over whether the Court was ready for a broad ruling.

When Jeb Bush weighed in this month after Florida started marrying gay and lesbian couples, he issued a statement that showed a politician who had undergone a striking evolution since his days as governor, when he defended a ban on allowing gay couples to adopt children and equated gay rights with “special treatment” for a class of people who did not deserve it. “We live in a democracy, and regardless of our disagreements, we have to respect the rule of law,” he said in a statement that stirred considerable discussion. This year is different. “It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love,” Holder’s statement concluded. The usual clichéd slogans won’t be enough.” But a court decision complicates the question for conservatives who espouse the importance of respecting the constitutional prerogatives of each government branch. Will nationwide marriage equality lead in time to full nationwide acceptance, or will they discover, like many civil-rights activists before them, that there is a big gap between legal rights and true equality?

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