Tuesday, March 26, 2013

In the News: Proposition 8 and DOMA Head to SCOTUS This Week

A landmark moment in time may come without a landmark ruling.

Proposition 8 is a law in California that bans gay marriage, in conflict with the State's supreme court that ruled that the state could grant marriage licenses to same-sex couples.

DOMA, the Defense-of-Marriage-Act, is a federal law signed by Bill Clinton in the '90s. 

The major news outlets are pretty much all saying the same thing: the SCOTUS (Supreme Court of the United States, for future reference) is likely to avoid making a broad ruling, since neither case directly asks the question, 'is it Constitutional or unConstitutional to ban same-sex marriage?'

I'm placing a 'bet' on how the week's cases will turn out. Here's my prediction:

PROP 8: Thrown Out

The SCOTUS will likely throw out the Proposition 8 case on the basis that the plaintiffs do not have "standing" to bring the suit. 

What does this mean? This website explains the issue of standing with a number of examples. As best as I can summarize my understanding of it, it seems that for you to bring suit against someone before the SCOTUS, you have to be able to prove that you a) are actually affected by the law/governmental action in question, or b) are indeed a person whom the government would sue for noncompliance if the law were to go into effect.

Apparently, the case may get thrown out because the plaintiffs are not directly affected by the federal district court's ruling that Prop 8 is unconstitutional.

The end result of this is that the lower courts' decisions would stand, rendering Prop 8 ineffective within California, and thus gay marriage would continue within that State. 

However, this would have no impact on any other State, or the nation as a whole, only CA

DOMA: Struck Down

The SCOTUS may very well rule that DOMA is unconstitutional. I don't have a lot of faith in the Court after the Obamacare "guess it was a tax after all, guys" decision that was split along ideological lines. I think DOMA will be struck down in the same way. It will be 4-5 with Kennedy casting his lot with the liberal activist judges once again.

But this will only decide whether the FEDERAL government can ban gay marriage.

This would be a loss for whichever side is on the losing end, for sure. But if it is struck down, it will only mean that the US government can't ban gay marriage in all the States. It would not give the Federal government the power to compel States to adopt gay marriage--that's the other side of the coin. If the government has the power to compel, then it has the power to ban. So if the power to ban is struck down, then so is the power to compel.

What's left is the question of whether individual States can ban gay marriage.

Based on the reasonable guess that the SCOTUS will not use Prop 8 to decide that issue, it seems that the same-sex marriage 'debate' will remain unresolved even after this week is over.

~ Rak Chazak

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