Supreme Court is likely to deliver a split ruling on gay marriage

by Russell's Rants

Originally published December 8, 2012

55af98ea21792429ee730651952f0f5aThe Supreme Court, headed by the crafty Chief Justice John G. Roberts, Jr., has a clear path to affirming the states’ rights to define marriage while further entrenching conservative judicial doctrine. The High Court is likely to strike down the federal Defense of Marriage Act (“DOMA”), while upholding California’s Proposition 8. Such a split ruling will mean that the U.S. government has no right to define marriage as a union of one man and one woman and must recognize same-sex marriage in those nine states that currently permit it. But, significantly, it will not federalize the right to marry and, on what could be characterized as Tenth Amendment grounds, leave each of the 50 states define marriage as a local matter.

Given the rapidly accelerating political acceptance of same-sex relationships, a split decision may, paradoxically, both advance the cause of gay rights, while setting back the broader goal of social justice.

If the Chief Justice can fashion such an opinion, it will be of a piece with his ruling on the Affordable Care Act of last term – which upheld “ObamaCare” based upon Congress’ power under the Taxing and Spending Clause of Article I, Section 8 of the Constitution, but not under its Commerce Clause. Just as President Obama is often said to be playing the long game, so is Roberts. He is continuing the anti-federalist project begun by his predecessor, Chief Justice Rehnquist.

Supreme Court Decides Whether Of Not To Review Challenge Of California's Prop 8Roberts’ legacy agenda is to reign in the ability of the federal government to engage in projects of national import and return the county to a pre-New Deal cramped federalism – with its negative implications for the social safety net, workers’ protections and civil rights. To achieve that goal, he may continue fashioning conservative judicial remedies while embracing what on the surface appear to be progressive results: universal healthcare and limited federal recognition of gay marriage. And he can do so while avoiding the public perception of judicial partisanship sparked most prominently by the Court’s decision handing the presidency in 2000 to George W. Bush in Bush v. Gore.

There is a commonality between Bush v. Gore and the Proposition 8 case in the form of its solicitors: Ted Olson and David Boies. They were opposed on the former and decided to unite to block the latter. The professional, gay rights community of lawyers, however, has never been convinced that a constitutional challenge to Proposition 8 was the best vehicle to advance the cause of gay marriage. They had designed the anti-DOMA cases which have been racing through the lower courts to get the issue to the Supreme Court first. Olson and Boies tied them at certiorari.

Here’s the difference between the two approaches: To strike down Proposition 8 on constitutional grounds would likely require the Court to embrace a same-sex, federal right to marry, which could potentially redefine marriage in all 50 states of the union – whereas it could find DOMA to be an unconstitutional federal intrusion into local matters traditionally left to the states.

All that being said, there is an outside chance that Circuit Judge Stephen Reinhardt (who authored the Ninth Circuit opinion affirming Proposition 8’s unconstitutionality) is the smartest legal thinker in the land. He narrowed the original District Court opinion to the particular and limited factual pattern of Proposition 8: where a state initially gives but then decides to take away important rights for no obvious rational reason other than animus toward a minority group. Where District Court Judge Vaughn Walker had struck down Proposition 8 using broad, sweeping language finding a constitutional right to gay marriage under the Equal Protection Clause, Judge Reinhardt refashioned the foundation of the ruling to almost precisely copy the rationale used by the Supreme Court in Romer v. Evan to find Colorado’s Amendment 2 unconstitutional. Supreme Court Associate Justice Anthony Kennedy authored Romer, and Reinhardt’s opinion reads like a brief tailored to win the favor of this one, sometimes swing, justice.

I am, of course, hoping that Judge Reinhardt’s opinion becomes the law of the land, which would allow the Supreme Court to move incrementally by changing the definition of marriage in at least one state, California, and letting the political process play out in the others that don’t now recognize same-sex marriage. But the “Reinhardt” option may be a bridge too far for Kennedy – and Roberts.

And at the end of the day, a split ruling may still advance the cause of gay marriage without risking the political backlash that a clean sweep would. The liberal-New Republic-Alexander Bickel critique of Roe v. Wade was that it federalized abortion law just at the time many states were moving to decriminalize the procedure. The result has been a 40 year social, judicial and political battle over abortion because so-called “unelected judges” imposed their view from on high – rather achieving the right to choose through the political process. Yes, it does seem to me that same-sex marriage is a fundamental right, deserving of Equal Protection Clause protections. But I also recognize that in a democratic republic such as ours, rights of minority groups are more “legitimately” and permanently won at the ballot box and by changing the opinion of the People – and their elected representatives.

I am, frankly, more concerned about the stinking time bombs that Justice Roberts planted in the Affordable Care Act ruling – and may plant in the gay marriage ruling – which is all the more reason that I can sleep a little more soundly knowing who will be making the next nomination to the Supreme Court should there be an opening in the next four years.

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