Hopefully Not a Sad Day for Gays and the Supreme Court
I finished listening to the audio transcript of the Supreme Court. I hope that I am completely wrong but fear I am not. It may not go well for gays regarding California's Proposition 8. I wrote previously that the Ninth Circuit court wrote their opinion to discourage the Supreme Court from taking the case. I am pretty sure the Supreme Court wished it hadn't taken the case now. They are in a no win situation and the Court is clearly frustrated.
There will be four members of the Court that support rights for gays. They believe there is no rational bases for discriminating against gays under any circumstances. There are two members that do not believe in the 14th Amendment's equal protection clause and will never find a reason to apply the law regardless of the case. Sometimes I wonder if they only attend the hearings to badger the attorneys for sport. Then there are two judges that rather they did not have to decide the case. They will say that Proposition 8 is constitutional having nothing to do with gay or marriage rights. They simply dislike the idea of a law not be defending by the government creating a governmental veto over initiatives brought by the people.
This means the case is tied 4 to 4 with one judge deciding. I am not sure who will be the deciding vote but they have an out. There will be untold legal repercussions throughout the country if he agrees with the Ninth Circuit court and throws out Proposition 8 as unconstitutional. If he upholds Proposition 8 gay marriage will be banned in California for now. No change will happen in the country which just dodged a bullet of legal chaos. Eventually the ban will be overturned by the people of California in 5 to 10 years, so there will be no harm and no foul. With 60% of the people supporting gay marriage, the deciding judge can duck his responsibility to protect minorities and let it play out at a later date.
I think they are going to have a tougher battle in the Federal DOMA case. At least two of the five judges that may vote in favor of Proposition 8 are staunch states rights advocates.They do not support federal laws that negate state laws. What are they going to do if they also want to decide gays do not have rights? If they strike down DOMA then in this case, or another case very soon, they will have to decide equal protection for marriage across state lines, Six to seven judges will not like some marriages being legal and others not. This creates a different kind of legal chaos. Our country is based on the idea marriages are enforceable across state lines.
There is but one choice ahead of them - move the country forward. I am sure they are thinking this was a mistake and looking for any way just to maintain status quo.
There will be four members of the Court that support rights for gays. They believe there is no rational bases for discriminating against gays under any circumstances. There are two members that do not believe in the 14th Amendment's equal protection clause and will never find a reason to apply the law regardless of the case. Sometimes I wonder if they only attend the hearings to badger the attorneys for sport. Then there are two judges that rather they did not have to decide the case. They will say that Proposition 8 is constitutional having nothing to do with gay or marriage rights. They simply dislike the idea of a law not be defending by the government creating a governmental veto over initiatives brought by the people.
This means the case is tied 4 to 4 with one judge deciding. I am not sure who will be the deciding vote but they have an out. There will be untold legal repercussions throughout the country if he agrees with the Ninth Circuit court and throws out Proposition 8 as unconstitutional. If he upholds Proposition 8 gay marriage will be banned in California for now. No change will happen in the country which just dodged a bullet of legal chaos. Eventually the ban will be overturned by the people of California in 5 to 10 years, so there will be no harm and no foul. With 60% of the people supporting gay marriage, the deciding judge can duck his responsibility to protect minorities and let it play out at a later date.
I think they are going to have a tougher battle in the Federal DOMA case. At least two of the five judges that may vote in favor of Proposition 8 are staunch states rights advocates.They do not support federal laws that negate state laws. What are they going to do if they also want to decide gays do not have rights? If they strike down DOMA then in this case, or another case very soon, they will have to decide equal protection for marriage across state lines, Six to seven judges will not like some marriages being legal and others not. This creates a different kind of legal chaos. Our country is based on the idea marriages are enforceable across state lines.
There is but one choice ahead of them - move the country forward. I am sure they are thinking this was a mistake and looking for any way just to maintain status quo.