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Center-Right Reaction to Supreme Court’s Taking Same-Sex Marriage Cases

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Carrie Severino, Judicial Crisis Network

For those who thought the recent election wasn’t about social issues, these cases are a reminder that the president’s biggest impact on the culture of this country is through his Supreme Court appointments.  For better or for worse, the courts have become the final arbiter of the most vital cultural questions our country faces today.

As many predicted, this term will see two more major decisions in cases the Court granted today: whether the federal government has the right to limit its own definition of marriage to a man and a woman, and whether states can constitutionally do the same.  The Court may decide that the Constitution requires a definition of marriage that would have been completely foreign if not repugnant to its Framers.

The Court had many options when choosing which challenge to the Defense of Marriage Act to consider.  Unfortunately, the case with the cleanest presentation of the legal issues - Gill v. OPM - also was one in which Justice Kagan was recused.  Presumably as a result, the justices chose to hear a different case, Windsor v.  United States.  This may have been a simple desire to avoid the possibility of a 4-4 decision.  It could also have been a regrettable ideological preference for keeping Justice Kagan on the bench for this landmark issue.

Justice Kagan’s uncharacteristically early involvement in Gill as solicitor general is an indicator that she already is a committed opponent of DOMA. Recusal rules may technically allow her to sit on the Windsor case because she was never involved in it directly, but she is hardly an unbiased, blank slate on this issue.

The Court also granted cert in Hollingsworth v. Perry, the case holding California’s Prop 8 unconstitutional. The Ninth Circuit wrote a narrow decision in an attempt to sanitize the outrageous district court opinion striking down Prop 8, and in doing so it created a contorted rule it supposed would only apply to the facts of California’s history on this issue.  Despite the broad language of the question presented, the Court is not likely to take this case as an opportunity decide whether there is a fundamental constitutional right to same-sex marriage.  Instead it will either be another smack down for the Ninth Circuit or an endorsement of the one-way ratchet that court created for same-sex marriage.  Once a state legislature permits it or a state court imposes it, there is no going back.

Prof. George W. Dent, Jr., Case Western Reserve University School of Law:

The Supreme Court now had an opportunity, and a duty, to overturn two misguided lower court decisions. In the California case (Hollingsworth v. Perry) the 9th Circuit overturned a state constitutional amendment because it made it harder for opponents to change the law. The absurd corollary is that state constitutions are unconstitutional. Indeed, the decision casts doubt on the constitutionality of any democratic decision that a court dislikes.

In United States v. Windsor the 2d Circuit reviewed Section 3 of the Defense of Marriage Act, which limits marriage to one man and one woman for purposes of federal law, and subjected it to heightened scrutiny because of its impact on homosexuals. This is an improper standard. The 14th Amendment was not originally intended to impose such scrutiny and there is no social consensus now that it should do so. Even if heightened scrutiny is applied, society has strong reasons to prefer the biological family as the best milieu for the bearing and raising of children.

Prof. John Baker, Louisiana State University Law School

Marriage creates the first and most basic level of self- government, the family. Neither marriage nor the family owe its existence to any State. States attempting to consolidate all power nevertheless assert ultimate authority over marriage and the family. The temptation to power through re-defining the only institution that dates back to the first man and woman may be too much  for some of the justices to resist.

Robin Wilson, Washington and Lee University School of Law

The Supreme Court is now slated to weigh in on same-sex marriage (Hollingsworth v. Brown; United States v Windsor).  In both cases, the Court will hear heart-wrenching evidence that the lives and relationships of same sex couples have been made poorer by their exclusion from the institution of marriage or by the federal government’s refusal to recognize their marriages.

Whatever the Court decides on the merits of these challenges, it should take care to leave a space for individual states to continue to decide how best to balance two compelling values – marriage equality and religious liberty. Through sometimes bruising legislative battles, nuanced laws recognizing same-sex marriage have been crafted in seven jurisdictions. In those jurisdictions, religious liberty accommodations shifted the question for some legislators from whether to embrace marriage equality to how to balance that good with religious liberty resulting in a core of protections for individuals and groups that adhere to a traditional view of marriage.  That shift resulted in successful legislation in some states where it had failed only years before.

How the Court will come out on same-sex marriage is anyone’s guess. But when the Court hands down its decision, it should avoid strangling the delicate process unfolding in state legislatures across the country by changing the political calculus for granting meaningful accommodations.

John Eastman,Chapman University School of Law

The Supreme Court’s decision today to hear both a Defense of Marriage Act case out of New York and the Proposition 8 case out of California is welcome news for the proponents of traditional marriage.  Now, squarely presented, is the issue whether the lower courts have been correct in creating a constitutional right to redefine marriage away from its traditional rooting in the biological complementarity of the sexes.  There are, of course, a couple of jurisdictional issues that the Court has quite rightly determined in must address, jurisdictional issues that have arisen only because our elected officials failed to do their duties and defend duly enacted laws – the Attorney General of the United States, in the DOMA cases, and the Attorney General (now Governor) of California in the Proposition 8 case.  If those actions deprive the Court of jurisdiction, then nothing would prevent a President, Attorney General, or a Governor from simply refusing to defend any law with which he disagrees.  That is not the rule of law, but the lawless rule of willful men.  More fascinating, if the Supreme Court does succumb to the arguments that it does not have jurisdiction to hear the cases because of such shenanigans, it might order that the lower court decisions that found a constitutional right to same-sex marriage would have to be vacated.

But much more on this subject in the weeks and months ahead.  Oral argument should be set for sometime late March or April, with decisions expected by the end of June.

Richard Epstein, NYU Law

Passions will surely run high know that the United States Supreme Court has decided to take two controversial cases involving issues of same-sex marriage.  The first of these is Hollingsworth v. Perry, in which the Ninth Circuit struck down Proposition 8, which had defined for purposes of California law a marriage as a union between one man and one woman. The Ninth Circuit decision held that this definition had one, and only one purpose, which was to deprive gay couples of the symbolic benefit of the word “marriage” while granting them all the civil rights normally associated with that status.  It turns out that there is a great deal in a name and a label, but the question is whether the Equal Protection Clause of 1868 should drive the Supreme Court to make this powerful intrusion in modern social life.  My own views on this question are decidedly mixed. As a strong libertarian on matters of personal freedom, it seems highly unwise for the state to use its monopoly power to exclude some couples while allowing others in.  But historically the case presents an insuperable obstacle to any originalist, for there is, in my view, no serious claim that conceivable form of originalism—historical, textual, or structural—can support the claim.  There is the further matter of institutional prudence, whether on this issue the Court should intervene on matters where public opinion is so sharply divided that the legitimacy of the Court’s own role will be called into question.

The question in Windsor v. United States is whether the 1997 Defense of Marriage Act can withstand similar equal protection challenges, given the effect the administration of the federal statute has on the various tax liabilities of persons who are married under New York States law but not under federal law.  The Equal Protection Clause by its own words is limited to states, but ever since Bolling v. Sharpe was handed down in 1955, it is always possible to read its command back into the Due Process Clause that binds the federal government. But what is striking that a statute that was able to secure democratic backing in 1997 is on the chopping block today.

One obvious question is the federalism issues that are raised in both Hollingsworth and Windsor are likely to influence the results.  My own guess—and it is only that—is that those issues will take a back seat to the substantive claims made on both sides.  The battle lines are clearly drawn in these case; no one is likely to change anyone else’s mind during the argument.  The only confident  prediction therefore is a copout:  a closely divided Court may rest on the extent to which Justice Anthony Kennedy hews to his unstable view in Lawrence v. Texas that the decriminalization of homosexual conduct does not require the state (and by implication the federal government) to recognize same-sex unions.  The situation is further clouded by Justice Elena Kagan’s decision to recuse herself in Windsor, but not in Hollingsworth.  It is therefore possible that we could have a deadlock 4-4 in the first case and a 5-4 decision to strike matters down in the second.

Would that both Congress and the states would pass legislation to obviate an issue which would have a far cleaner solution when done by political means.


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