From respected conservative legal theorist Michael McConnell, an interesting WSJ op-ed on DOMA: The Constitution and Same-Sex Marriage. He backs a federalist approach that finds a reasonable way to restore same-sex marriage in California (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) while also getting rid of DOMA’s ban of federal recognition of same-sex marriages in states where they are legal, without imposing same-sex marriage nationally. That sounds like a decent solution (certainly, we could do much worse), avoiding a political backlash in southern and conservative states. Unless equal really does mean equal under the Constitution, whatever the backlash.
This New York Magazine report shows how it’s a fearsome muddle to get divorced when you’re married in one state but not in another. States have residency rules for divorce but not for marriage, so if you can only get divorced in a state that recognizes same-sex marriages but you live in on that doesn’t, then someone you may have broken up with years earlier may claim a legal right to make medical decisions for you and inherit your property. And if the Supreme Court ends federal marriage discrimination and nothing else, the not-quite ex could claim the beneficiary’s share of your Social Security. You also can’t move on and marry somebody else while residing in a non-marriage-equality state. That’s not good.
More. Via Slate, The Sexual Fetish of Gay Marriage Opponents: “Defenders of DOMA and Prop. 8 say marriage isn’t about love or parenting. It’s about coitus.”
Furthermore. Richard Epstein, thoughtfully, on Gay Marriage and the Libertarian’s Dilemma:
Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team…. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.
24 Comments for “How Far Should the Court Go?”
posted by rickles58 on
Stephen,
I agree with your general point, and am myself married (in CT) and living in FL. In order to divorce, either my husband or I would have to establish residency in a state that recognizes our marriage.
However, your point in the final paragraph regarding someone with whom you broke up having medical decision rights for you only holds true if you are in a state that recognizes your marriage. If that is the case, then you’d be able to get divorced.
posted by SMG on
As much as I am trying to be excited about these upcoming rulings, my feelings are muted.
I think the best we can hope for is California getting marriage (by several different routs), and DOMA section three being shown the door.
While both of these would be great turnouts, only half the camp would be freed. For people in most states, including mine; such rulings would mean it’s just another day. I suspect that is what we are going to get.
Don’t get me wrong, this will put thousands in a better position and undoubtedly move the ball forward for more. And I AM grateful for that. But for far more of us, the struggle will have to continue.
I would be much more excited if Section 2 of DOMA were being decided. It quite explicitly contradicts Full Faith and Credit; and its overturn would impact far more of us.
Not being bitter, just keeping it real for myself.
posted by Tom Scharbach on
I would be much more excited if Section 2 of DOMA were being decided. It quite explicitly contradicts Full Faith and Credit; and its overturn would impact far more of us.
DOMA Section 2 doesn’t amount to a hill of beans, in legal terms. It isn’t important.
States have historically been permitted to refuse to recognize marriages from other state that would not be valid in the state because of public policy reasons, and do so in straight marriages. Full faith and credit doesn’t cover all marriages, and never has. It would be very hard to make the case that a state which has gone through the effort of adopting an anti-marriage constitutional amendment hasn’t made a public policy decision about same-sex marriage, taking the matter out of Full Faith and Credit.
posted by Tom Scharbach on
“… (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) … ”
In broad terms, the Justices have the following options:
My guess is that the Court will narrowly affirm the 9th Circuit decision. I think this because: (1) it is the narrowest opinion in the range of options, (2) the 9th Circuit decision carefully follows Romer v. Evans, which means that SCOTUS could rely on existing precedent, and (3) Justice Kennedy, who has a history of ruling very narrowly in “culture war” cases, signalled a week or so ago that he would be likely to rule narrowly in this case.
I do not think that a “no standing” ruling is likely. Unlike the argument for narrowly affirming the 9th Circuit, the standing argument is not based on firm precedent, and a “no standing” opinion would affect a potentially large number of cases going forward. The Court is historically reluctant to issue broad rulings with unpredictable future effects, and I don’t think that it is likely in this case.
“… avoiding a political backlash in southern and conservative states …”
A backlash is predictable unless the Court holds that the Equal Protection Clause is not offended by marriage discrimination, because the result, in any of the other cases, is that marriage equality will have been mandated in California (and perhaps other/all states, depending on the ruling).
Don’t worry about “backlash”. We’ve seen plenty of backlash — backlash each and every step of the way — and we’ve survived it. As far as I am concerned, the louder and more vehement the backlash, the better. Every time those people open their mouths, more people come over to our side.
“Unless equal really does mean equal under the Constitution, whatever the backlash.”
To my mind it does, no question about it. But I’m not expecting the Court to mandate marriage equality in all 50 states for a number of years. The Court historically doesn’t move in big legal leaps, and the Proposition 8 case is almost perfectly set up for a narrow, but pro-equality decision.
posted by Tom Scharbach on
My guess is that the Court will narrowly affirm the 9th Circuit decision.
I note that Geoff Stone thinks that the Court will take the “everything but marriage” route. Geoff is usually right about SCOTUS calls.
We’ll find out in June or thereabouts.
posted by Tom Scharbach on
Oh, and here’s the link.
posted by gary47290 on
There’s another option that most commentators are ignoring. SCOTUS could remand Perry v Hollingsworth back to the 9th Circuit, or even the district court, with questions they want adjudicated before they really address this issue.
I personally and selfishly hope for a 50 state ruling extending marriage equality. However, I think state Supreme Courts in Washington, Maryland and New York were correct in the past decade. This is a political issue to be settled by the legislature or the voters. This was done in all 3 states, and we now have extension of equality by a process that has legitimacy, killing any serious opposition. Remanding Perry will delay the judicial question for a couple years, and has the quiet message to voters in California that they should get their act together and repeal Prop 8 as a political act.
$0.03, a Queer stance.
posted by Houndentenor on
There is some logic to the “leave it to the states” argument. Marriage and divorce laws are different in different states and always have been. But this creates an almost unique problem for gay couples. As I mentioned elsewhere, the idea that a couple could drive across the country and be married, then not married, then married again as they cross state borders is ridiculous. The theory behind that argument, makes sense. In practice, it’s absurd.
posted by MR Bill on
Let me second the recommendation on the New York Magazine piece: solid reporting, and lays out the policy issues in light of the current cases .
posted by Aubrey Haltom on
The NYT ran a financial article this morning re: the legal mess that would face same sex couples nationally from any SCOTUS decision other than a national, constitutional right to marriage.
It is not an endorsement of any option, rather a sober look at how (even more) complicated things could get with these ‘incremental’ rulings.
And I know those who favor the incremental approach are probably correct in what will transpire.
However, there seems to be this assumption that ‘soon’ the issue will be back in front of SCOTUS, and we’ll win the battle then.
‘Soon’ being anywhere from a few years to a decade.
This view, the ‘soon’ belief, strikes me as somewhat optimistic. I can see us getting bogged down in a state’s rights quagmire for many years to come. Regardless of public opinion.
(Don’t polls show some states – Alabama, Mississippi – with significant support for constitutional bans on interracial marriage?)
Anyway. My husband and I live in Massachusetts, with our young son. Our families, including aged and infirmed parents, live in Texas and Missouri.
Anything less than a constitutional right to marriage decision will leave us in much the same boat we are today. I’m looking forward to DOMA’s demise, but I’m concerned that the ‘incremental’ approach Obama favors will leave us in a virtual 2nd class status for much longer than many anticipate.
Here’s the NYT article:
http://www.nytimes.com/2013/03/23/your-money/a-supreme-court-victory-wont-flatten-same-sex-hurdles.html?hp
posted by Tom Scharbach on
However, there seems to be this assumption that ‘soon’ the issue will be back in front of SCOTUS, and we’ll win the battle then. ‘Soon’ being anywhere from a few years to a decade.Anything less than a constitutional right to marriage decision will leave us in much the same boat we are today. … I’m concerned that the ‘incremental’ approach Obama favors will leave us in a virtual 2nd class status for much longer than many anticipate.
My guess is that we’ll see a Loving-type 50-state ruling between 2020 and 2025, and not until then. It isn’t so much a question whether President Obama or anyone else “favors” and incremental approach (legal positions, strategy and tactics of the litigants don’t determine or even influence very muchhow courts rule on cases) as it is a question of how cases are handled by the courts, including SCOTUS.
Three factors are at work:
(1) With respect to constitutional law cases, particularly controversial cases protecting the rights of unpopular individuals and/or groups, courts depend on public acceptance of court decisions so that the decisions can be enforced. Except in extraordinary circumstances (Brown v. Board comes to mind), the courts do not issue opinions that will have to be enforced at the point of a gun, but instead issue opinions that reasonable people will accept, even if a significant minority will not. So the courts will not, typically, move too far ahead of public opinion.
(2) With respect to all cases, including constitutional cases, a basic legal rule of thumb is that courts don’t decide what they do not have to decide, that is, courts typically limit themselves to deciding on the facts and legal issues presented by the case. move incrementally, building precedent upon precedent, rather than in legal leaps and bounds. Even Citizens United which seems like a leap, was an outgrowth of over a century of legal development, beginning with rulings in railroad cases presented by Edwin Stanton and Abraham Lincoln, in which corporations were deemed “citizens” for in limited instances. So we can expect the courts to rule narrowly in the case of marriage equality, deciding issue by issue, until the necessary legal foundation is in place for a Loving-type 50 state ruling.
(3) In controversial cases, the majority in SCOTUS typically seeks the highest vote count, which is to say that the majority will work toward a 7-2 or 6-3 split rather than a 5-4 split. In really controversial cases like Brown v. Board the majority will work hard to get 8-1 or 9-0.
Looking at all those factors in Perry, given the facts of the case and the legal issues presented, there are (of the five options) two stop points along the continuum from “no constitutional issue” to “marriage discrimination is unconstitutional”.
The first is the “now you have it, now you don’t” stop point, in which the majority can frame the constitutional issue as a question of whether or not a state can abrogate an existing right (in this case, the California Supreme Court’s ruling that marriage equality was mandated under the California constitution), and under what conditions.
The second is the “everything but marriage” stop point, in which the majority can frame the constitutional issue as a question of whether or not a state can create two parallel, “equal but separate” legal structures, one for one group of citizens, and the other for the other group of citizens, and under what conditions.
A decision holding for equality in either case is a relatively easy reach in terms of precedent and legal reasoning. The difference between the two is scope; the former is more limited in scope than the latter. The question is which the majority will go with in Perry.
I suspect that depends on where Justice Kennedy and Chief Justice Roberts come down.
If both are willing to frame the issue as “equal but separate”, then we’ll see that decision.
If either (but not both) are willing to rule on that ground, but both are willing to rule on “now you got it, now you don’t”, then I think we’ll see a decision on that ground.
You can bet that there will be strong internal pressure on the majority to frame the legal question that is actually decided in a way that will permit Chief Justice Roberts to join in the majority opinion (in which case he will write it) or at least concur (in which case Kennedy will probably write it, and Roberts will write a concurring opinion). So it really comes down to Roberts.
In any event, a 50-state decision isn’t likely, if for no other reason than the facts in Perry don’t require an all-or-nothing decision. That case will come in the future, and then the Court will have to decide it.
The Obama administration’s brief reflects that reality.
posted by Aubrey Haltom on
@ Tom Scharbach – I think the ‘Obama brief’ more accurately reflects O’s determination to continue his ‘split the baby’ approach. i.e., The government’s brief fits neatly into O’s ‘state’s rights’ argument re: same sex marriage. Which, btw, is an argument I find disingenuous on O’s part.
(Just to clarify, I’m referring to Obama’s statement -repeated by Jay Carney numerous times – that states SHOULD have the right to ‘discuss’ and ‘determine’ how they’ll handle same sex marriage.
I enjoy reading your comments, Tom, if for nothing else but your fluency in legalese. (Actually, much more than that. But the attorney-speak is helpful.)
So therefore I have to ask – why do you think Olson/Boies are going for the ‘home run’? i.e., an overturning of all marriage bans in the US.
And would it have made some sense for the WH to stand for that conviction? The WH brief – in my limited understanding – begins by essentially repeating the arguments that Olson/Boies make (‘heightened scrutiny’, ‘equal protection’, etc…). But then the WH takes a ‘right-turn’ and does a little Lily Tomlin (‘nevermind!’) and advocates for a limited ruling.
Anyway – I posted the NYT article because it reflects what will (probably) happen with my family post-SCOTUS ruling. If that ruling is anything other than an overturning of all bans.
We’ll still have to carry documents with us everywhere we go (in the US), we’ll still have to hope-like-hell that the people and situations we meet are not adverse and/or hostile to us as a family. And we’ve encountered those situations already.
Unless SCOTUS makes the decision to lead the US out of this quagmire, anything less will not be as profound – in real world terms – as some people seem to think it will.
posted by Tom Scharbach on
I think the ‘Obama brief’ more accurately reflects O’s determination to continue his ‘split the baby’ approach. i.e., The government’s brief fits neatly into O’s ‘state’s rights’ argument re: same sex marriage. Which, btw, is an argument I find disingenuous on O’s part.
The brief does fit neatly into the “states rights” argument, and I think it should. The Court doesn’t have to dismantle the reserved powers clause as applied to marriage over the years in order to find that marriage discrimination is unconstitutional. To my mind, courts (including the Court) should not decide issues that don’t need to be decided.
With respect to the government’s brief, I think that it is important to keep in mind that the Solicitor General’s office is quasi-independent of politics, because the Solicitor General’s office is a law office that has won a hard-earned reputation for taking careful, measured and well-reasoned legal stands in the briefs it files with the Court, both as amicus and as a party. The Solicitor General’s office would lose the respect of the Court if it did otherwise.
I have no idea how it played out in this case (someone, someday, will write the history), but I would not discount the idea that the Solicitor General independently determined the nature of the argument it would make, and would have resisted any political efforts from the Attorney General or the President to take a different position.
So therefore I have to ask – why do you think Olson/Boies are going for the ‘home run’? i.e., an overturning of all marriage bans in the US.
I’m not privy to their thinking, but here’s my thoughts:
(1) With the single exception of a very narrow decision affirming the 9th Circuit (it is theoretically possible to frame a “constitutional right, once granted, cannot be abrogated” principle without ruling at all on the other constitutional issues surrounding the case), the case inherently involves numerous decisions (e..g. that homosexuality is an immutable characteristic, that homosexuals, as a class, have faced a wall of discrimination, that the rational basis for discrimination is so weak that it is laughable, and so on) that will, eventually, form the basis of a 50-state ruling. We see all those issues argued back and forth in the various briefs that have been filed.
(2) Given that fact, and although there are “stops” along the way to a 50-state decision which make it unlikely (to my mind, anyway) that the Court will issue a 50-state ruling, Boies and Olsen have no reason to argue for anything other than a 50-state ruling. Boies and Olsen are lawyers for the plaintiffs, and by extension for all of us who seek the right to marry, and lose nothing by arguing for a 50-state ruling.
(3) Although I think that a 50-state ruling is unlikely, a couple of Justices, at least, have signaled that a 50-state ruling would be acceptable to them, and it is likely that we might see a concurring opinion or two that argue for a 50-state ruling. Although the language in concurring or dissenting opinions are not precedent, and theoretically have no sway on future opinions, as a practical matter, they do. Future Justices often cite concurring/dissenting language in future opinions. Notice how the language from the dissents in Hardwick found their way into Lawrence. It is one of the ways that the law moves forward.
My guess, thinking about all this, is that Boies and Olsen are putting themselves in a legal position to win the long shot, whatever they may think about the chances of that happening, and in doing so, are laying the groundwork for future decisions.
But I don’t know. It is just a guess.
I do know that Boies (at the trial level) and Olsen (at the appellate level) are two of the best lawyers in the country, and the legal team backing them up is outstanding. Whatever they are thinking, I trust them to have put a lot of careful thought into their strategy.
I enjoy reading your comments, Tom, if for nothing else but your fluency in legalese.
Rueful laugh on my part …
Honestly, I’ve been trying to write in “plain English”, although I was a practicing lawyer for 30 years. I guess I just can’t do it. Words like “abrogate” are just part of my vocabulary. But I hope what I’m saying is clear enough, even if I’m speaking in legalese at least half the time.
I was thinking yesterday that I just love this legal battle, and the way it is unfolding. For me, the only thing that comes close, in terms of enjoyment, is a really good NASCAR race, like yesterday’s. I’ve been following every brief and ruling with the rapt attention of a kid in a candy store.
posted by Aubrey Haltom on
From the SCOTUSblog re: the government’s Prop 8 brief, on the day it was filed:
“Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make.”
I’ve read that the WH claims Obama not only ‘fashioned’ the argument, but read, edited and directed the brief.
btw, Obama’s state’s rights argument has always seemed bizarre to me. His position is not a ‘descriptive’ one – i.e., marriage is a state issue. And Obama is merely describing that legal fact.
But a ‘prescriptive’ one – Obama is advocating for states to have the right to determine for themselves whether they will allow same sex marriage. This distinction has been noted by Carney in at least 2 different press conferences (such as the one immediately after the Prop 8 brief was filed).
As the president’s ‘position’ has become more assertively ‘pro-equality’ this prescriptive stance sounds even more disconcertingly out of place.
I think (perhaps more accurately, I guess) that Obama’s position is meant to reflect the thought that we hear re: Roe v Wade. You know – if SCOTUS had not made such a broad ruling, then abortion wouldn’t be such a contentious issue today.
Unfortunately, if SCOTUS doesn’t make these ‘federal’ rulings – rulings that affect the entire country – then we’re left with decades of ‘equal means equal in xxx states, but not in xxx other states’.
Final question on this thread.
@Tom – what happens (tomorrow?) if a SCOTUS judge asks Olson why bans should be overturned nationally, then turns and asks Verrilli why the government doesn’t want SCOTUS to do just that?
posted by Tom Scharbach on
“Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make.”
I’m sure that’s true. President Obama, after all, taught constitutional law at the University of Chicago, one of the best law schools in the country. I’d be surprised if he weren’t involved in the discussion. But his involvement — presumably arguing that the government should limit itself to the argument that “equal but separate” doesn’t meet constitutional standards — doesn’t mean that the Solicitor General didn’t reach the same conclusion.
If I had been in the room, I would have fought for an argument limited to “a constitutional right, once granted, cannot be abrogated”, because that seems to me to be the ruling that doesn’t require an adjudication of “equal means equal” and, hence, most likely to draw in Chief Justice Roberts and Justice Alito.
My view (despite the fact that I’ve fought long and hard for “equal means equal”, and as impatient as I am becoming, given that I’m old enough that may well not live long enough to get married, and I want to marry Michael) is that a 50-state ruling on marriage equality should not be issued until about half of the American people live in states where marriage equality is a fact on the ground. That’s not too far off.
But who knows who argued what with respect to the government’s brief? Clearly you are right about the President’s position on the matter, whatever may be behind his thinking.
Final question on this thread.
What happens (tomorrow?) if a SCOTUS judge asks Olson why bans should be overturned nationally, then turns and asks Verrilli why the government doesn’t want SCOTUS to do just that?
I don’t expect the question to be put quite that starkly, but the issue will be in play during the oral arguments. I don’t know how either Olsen or Verrilli will address it, but I’ll be listening in like everyone else, fascinated with how it plays out.
Olsen, interestingly, yielded a third of his time (10 minutes out of 30) for Verrilli. I don’t know his thinking, but Olsen is a former Solicitor General, and my guess is that he made the decision because he thought that Verrilli’s argument will make a favorable outcome more likely. When the Solicitor General speaks, Justices listen attentively.
posted by Houndentenor on
That really is the best argument for granting full marriage rights in all 50 states. You live in Massachusetts but have business and family matters that at some point are going to require you travel to states that would not recognize your marriage. Crossing your fingers and hoping you have no health emergencies or accidents during those travels is not a plan and not something we would expect other married couples to do. Your marriage has to be recognized throughout the US and its territories.
posted by Tom Scharbach on
I agree with you. It’s nuts, Houdentenor.
I live in Wisconsin. Michael and I are registered domestic partners. In Wisconsin, I have the right to make medical decisions for Michael if he cannot, to make end-of-life decisions, and so on. In all other states, Michael and I are legal strangers, and his mother has all those rights.
The same is true of our friends Rick and Steve (yup, no joke but it is backwards – in the real couple Rick is the white Iowa farm boy and Steve the Vietnamese). Rick and Steve were married in Iowa, and live in DC. In DC and Iowa (and a number of other states), they are married. If they come to see us in Wisconsin, they are legal strangers, no relationship to one another at all.
Our Congressman, Mark Pocan, and his husband, Phil, were married some years ago in Canada. When they are in DC, they are married. When they are in Wisconsin, they are legal strangers. When Mark is in DC being a Congressman, and Phil is in Wisconsin tending the family business, who knows what their legal status might be.
It isn’t just same-sex marriages, of course. Straight couples in so-called “traditional” marriages have the same problem, although not as dramatically. Marriage laws differ from state to state, and situations exist under the “public policy exception” to the Full Faith and Credit Clause where marriages are recognized in some states but not in all. The typical case these days involves degrees of consanguinity, although interracial marriages used to be a common problem, too.
It is all nuts, but that is the price we pay for federalism in our constitutional republic. Is the price of preserving the traditional role of states in marriage law worth the cost in modern times, when interstate travel is common? Who knows, but the law is the law, even when the law is an ass.
As the old saying goes, “We may be divorced, but we’re still cousins.”
posted by Houndentenor on
I have an odd question…what would stop a state, say Massachusetts, from deciding it would no longer respect marriages performed in states that do not recognize all marriages performed in MA? If each state can pick and choose from the marriages performed in other states, why can’t states just ignore all kinds of other marriages?
posted by Tom Scharbach on
If each state can pick and choose from the marriages performed in other states, why can’t states just ignore all kinds of other marriages?
Theoretically, nothing stops a state from refusing to recognize the validity of a marriage performed in another state so long as the state has a strong public policy rati0nale for doing so.
Full faith and credit was put in the Constitution to further commerce, and it is a carve-out from the reserved powers clause, which treats states as sovereign in all matters not federalized under the Constitution. The public policy exception doesn’t apply to enforcing monetary judgements and so on, but does apply to laws. Federal courts have been reluctant to force a state to enforce the laws of another state in contravention of its own public policy, and that includes marriage laws.
posted by Gary47290 on
The key argument against a 50 state solution is that a big bang ruling in Roe v Wade generated as culture war that is now 40 years old, and totally unresolved. We don’t want to repeat that mistake with marriage equality.
SCOTUS upheld the Georgia sodomy laws in 1986, because sodomy law repeal was still an active state debate. (IN 1986, about 24 states still had sodomy laws. IN 2003, when SCOTUS reversed Bowers v Hardwick, there were only 14 such states, almost all in Bible / Mormon belt states) Letting states debate this for another 17 years was unfortunate for Gay Americans, but when SCOTUS finally ruled the correct way, there was no backlash except among the small loony right-wing circles.
I predict that California could readily repeal Prop 8 in 2014, but will be wiser to wait until 2016, to increase the young voter turnout and make the opponents less popular. A 2014 repeal effort would probably cost the same as the 2008 enactment ($84M total). In 2016, the opponents should be far weaker, and hopefully will just give up.
Michigan, Montana, Oregon, Colorado, and Ohio are prime candidates for a 2014 repeal movement. These will be much cheaper to pursue a winning campaign, and have the added benefit of geographic diversity. Unfortunately, Wisconsin only allows legislative referenda, so no popular movement will force the GOP controlled legislature to submit a repeal vote in 2014. That vote depends on flipping the legislature to Democrat control in 2014, to get a repeal vote in 2016.
In any case, a modest investment in repeal efforts will set up a far better political environment in 2016 for an attempt to push a 50 state ruling.
posted by Tom Scharbach on
Wisconsin only allows legislative referenda, so no popular movement will force the GOP controlled legislature to submit a repeal vote in 2014. That vote depends on flipping the legislature to Democrat control in 2014, to get a repeal vote in 2016.
A clarification: Wisconsin requires that a proposed amendment be passed by both houses of the legislature in two consecutive sessions of the legislature in order to be put on the ballot. As a practical matter, that means that the Democrats would have to regain control of both Senate and Assembly in the 2014-2015 session, and hold control in the 2016-2017 session, to get a repeal amendment on the 2018 ballot. Given the 2010-2011 redistricting, nobody expects that to happen.
And a side note: Wisconsin Family Action brought a lawsuit to declare Wisconsin’s Domestic Partner Act (which grants about 40 rights out of the hundreds available to married couples) unconstitutional because it is “substantially similar” to marriage. The case will be heard by the Wisconsin Supreme Court later this year, in all likelihood. If SCOTUS opts for the “everything but marriage” option, and (against all reason) the Wisconsin Supreme Court holds that our DPA is so similar to marriage that it is unconstitutional, Wisconsin Family Action’s brain (such as it is) will explode. It would be sweet justice.
posted by Houndentenor on
While I’m not opposed to your proposed repeal efforts, and depending on what the court decides, that may be a good plan. But I think it’s naive to think that were it not for Roe v Wade that abortion would be a settled issue by now. For the same reason, Texas and many other states would still have sodomy laws were it not for Lawrence. I also find it disturbing that the reasoning for the court overturning itself is a shift in popular opinion. It’s probably true, but it’s troubling to think that the court would make a ruling it knew to be wrong hoping some future court would correct it when it was more politically favorable to do so.
In any case, this is a fun little game but in reality we have no input into what those nine people will come up with a decision in either case. I know that Olson says he’s going for full marriage in all 50 states, but that just seems far fetched to me. Perhaps I am still in shock that gay marriage, which seemed impossible when I came out in the late 80s, is low legal in states and supported by a majority of Americans. I just don’t think they’ll go that far, especially when they have other options.
posted by Aubrey Haltom on
“But I think it’s naive to think that were it not for Roe v Wade that abortion would be a settled issue by now. ”
I agree, Houndentenor. I briefly mentioned the polling in Alabama, Mississippi re: interracial marriage because of this same fallacy of thought.
Some states would (possibly) still have interracial marriage illegal if not for the SCOTUS decision.
And how people think we would have anything other than a checkerboard mess without Roe v Wade is beyond me. Though that decision has been attacked and whittled down until it’s almost useless in some part of the country – there is still a (however low) baseline of “rights'” per the SCOTUS ruling.
Sometimes the role of SCOTUS is to follow the country; other times it has to take the lead when the country refuses to recognize the basic principles of the constitution, almost always in re: to minority rights. Or so I think. 🙂
posted by Tom Scharbach on
I also find it disturbing that the reasoning for the court overturning itself is a shift in popular opinion. It’s probably true, but it’s troubling to think that the court would make a ruling it knew to be wrong hoping some future court would correct it when it was more politically favorable to do so.
Courts are permitted to take “judicial notice” of the real world in rendering decisions, and do so. Otherwise, constitutional decisions would be sterile abstractions living only in the narrow world of legal reasoning, having little or no connection to the broader world.
The two most typical areas in which courts take notice of matters outside the confines of legal reasoning are:
(1) Scientific knowledge, as in the psychological studies concerning the effects of racial discrimination that formed the basis for Brown‘s determination that “separate but equal” is inherently unequal, allowing the Court to overturn Plessy; and
(2) Developments in policy and practice, as in the numerous citations to legal changes worldwide with respect to criminal suppression of sodomy that the Court used to support its decision in Lawrence, overturning Hardwick.
Taking “judicial notice” is different than simply following “shifts in public opinion”, because the decision is based within the confines of the constitution, and constitutional principles, as interpreted over the years, are the bedrock on which a decision must stand.
In a nutshell, courts have the power to interpret the constitution — to determine what the constitution means and should be applied in a particular factual and legal context. With all due respect to “original intent”, that changes as society changes.
Let me give you an example: constitutional interpretation “cruel and unusual punishment”.
The constant in the legal equation is that the constitution forbids it. The variable in the legal equation is that opinion, policy and practice determine, to a large extent, what is “usual” and, to some extent, what is “cruel”. Not too long ago in human history, “drawing and quartering” (that is, disemboweling the condemned while still living, and then cutting the body into quarters) was not unusual for serious crimes, nor considered cruel. Clearly that has changed.
So that’s a simplified version of the legal theory. But, as I noted in an earlier comment, and Gary47290 notes above, the Court is reluctant to get too far beyond public opinion (in the common meaning of the term) in cases of widespread application, that is, the Court is reluctant to issue an opinion that runs so contrary to public opinion that the decision would have to be enforced at the point of a gun. It sometimes does so (the 82nd Airborne was called out to enforce Brown, for example) but it does so rarely.
To my mind, that is a form of “judicial restraint”, a recognition, as Justice Kennedy noted a couple weeks ago, that nine unelected judges, looking at constitutional principle from “a narrow legal perspective”, is not the only, and may not be the best, way to decide important, contentious issues in our constitutional system.
I think that this form of judicial restraint is, on the whole, good, although I acknowledge that it makes things messy.