USA: Prop 8 / Defense of Marriage Act Updates 3/23/13

Written by scott on March 23rd, 2013

US Supreme CourtWe’ve settled into a bit of a waiting game now for the US Supreme Court hearings on marriage equality next week. So most of the new articles out on the topic are speculation. A few of the better ones:

The Washington Post looks at the wide range of options the US Supreme Court has in these cases:

The justices might come out with rulings that are simple, clear and dramatic. Or they might opt for something narrow and legalistic. The court could strike down dozens of state laws that limit marriage to heterosexual couples, but it also could uphold gay marriage bans or say nothing meaningful about the issue at all.

The article looks at the various possible scenarios, including if the Justices uphold Prop 8:

A. This would leave gay Californians without the right to marry in the state and would tell the roughly 40 states that do not allow same-sex marriages that there is no constitutional problem in limiting marriage to a man and a woman. Such an outcome probably would trigger a political campaign in California to repeal Proposition 8 through a ballot measure and could give impetus to similar voter or legislative efforts in other states.

Yahoo news looks at how straight couples have changed the institution of marriage itself over the last fifty years, paving the way for marriage equality:

As opinions have shifted, so has marriage. Getting married once meant signing on to traditional gender roles wholesale. Companies once refused to consider married women for employment, or required women who were getting married to resign. (IBM, for example, only altered this policy in 1951.) It wasn’t until the late 1970s that women could sue for consortium, or the right to their husband’s aid, support and companionship… In other words, same-sex couples haven’t changed marriage for straight people, as opponents of same-sex marriage often argue, Coontz said. Heterosexuals changed marriage first.

It’s an interesting point. I remember even twenty years ago, it was common for gay couples to be asked “so who’s the woman?”, and for lesbians to be asked “”who’s the man in the relationship?” Even in the late 80’s and early 90’s, those old gender roles were perpetuated.

The man took out the trash paid the bills, and the woman washed the dishes and took care of the children. Even then, this model didn’t suit Mark and I – our household chores have never broken down along traditional male-female gender lines.

Over at the The Los Angeles Times, they’re asking whether a ruling from the Court legalizing marriage equality would be likely to provoke a backlash. In a word, no:

Thus, while a broad marriage equality ruling would undoubtedly generate some backlash, its scope would be far less than that ignited by Brown or Roe. A majority of Americans would immediately endorse such a decision, and support would increase every year. Opposition would be far less intense than it was to school desegregation or abortion because the effect of same-sex marriage on others’ lives is so indirect. Some politicians would roundly condemn the ruling, though many Republicans and most Democrats would not. State officials would have no way to circumvent such a decision, nor would many same-sex couples be intimidated out of asserting their right to marry. Outright defiance is conceivable, though it seems unlikely that any state governor would be willing to go to jail for contempt of court.

That’s good news. none of us wants to be fighting this same battle thirty or forty years from now.

Well, maybe some of our opponents do.

Over at Slate, Emily Bazelon advises us on what to watch for in the Defense of Marriage Act and Prop 8 hearings. Her primary target? Justice Kennedy:

Kennedy is the swing justice, the one whose vote will probably determine the outcomes of these cases, like so many others. (It must be crazy to have all that power.) As New York law professor Kenji Yoshino has pointed out, there is nothing Kennedy loves more than gay rights and states rights. So Windsor, the DOMA case, is perfect for him. It’s the suit in which Kennedy and the court could take an incremental step toward same-sex marriage while also reaffirming states’ traditional power over domestic and family law. (The case also features the appealing Edie Windsor, an 83-year-old New York widow who wants back the $360,000 in taxes she paid when her spouse Thea Spyer died–money she would have kept if she’d been married to a man.) Will Kennedy’s questions suggest that he thinks New York’s definition of marriage should control the federal government?

But there’s a lot more in play here – including standing – with both California and the Justice Department stepping back from defending these odious laws, do their proponents have the right to do so?

Then there’s the level of scrutiny to apply in each case – the higher the standard, the harder it will be to uphold these laws.

And given that Chief Justice John Roberts surprised everyone with his vote to uphold the Affordable Care Act last year, could he jump ship on this one too to preserve his court’s historic legacy?

Read the whole article at the link above – it;s really well-thought-out.

Three more days.


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