I stand by my analysis yesterday and think that the hints we can derive, if any, from yesterday’s oral arguments and today’s strengthen my guess that we will be getting something that doesn’t “force” same sex marriage on states that don’t have it.
The Justices spent a lot of time trying to argue that it seemed odd that states that have almost equalized same sex relationship rights would be “penalized,” but they arguing with their own jurisprudence: laws are tested by the “state interest.” If the state has no other interest other than a name (or so they say), then they don’t have one and the test is not met. I get the common sense aspect of the question, but what does common sense have to do with Constitutional law?
Obviously, they are concerned about “overreach.” I support that because I don’t think the Court should be active in striking down laws where the democratic process isn’t skewed so their care in deciding whether this is such a case is appreciated even if I don’t think one can seriously argue that that has been the case (i.e., that democracy was working for gay people) up until the very recent months or weeks even with respect to this issue.
In both the DOMA and Prop 8 cases, the governments refused to enforce the laws. In both cases, we have unofficial representatives trying to enforce the law. Under California law, the question is slightly different because the initiative process (as disastrous as it has been for the state) was designed to allow the people to enact their own laws. Under federal law, I don’t understand how the Court, under its own rulings, can decide a question where there is no dispute—where the plaintiffs and the government agree on what the result should be. I have no idea how one house of Congress has any standing to defend a law, or, even how both would.
The check on this is not the Court. It’s either (a) impeachment of the attorney general or president, or, (b) elections [Edit: or (c) the passage of a law providing for an independent counsel of some kind, either over the veto of the President or not] If the court wants to be restrained and limited in what it rules on (which it sure seems to say it wants) then they need to quit seeing themselves as a check on the other branches in situations that aren’t cases or controversies.
That’s my opinion, but I still maintain that while precedent plays a role, it’s impossible to know what the Justices are really thinking and the most accurate way of predicting what they will do is what their known political orientation is. This strikes many people, especially in legal academia, as wrong. But is there really any doubt that if the only question to be decided was whether or not gay marriage was absolutely required under the Constitution, the result would be at best 5-4 or that even on the weasely issues there will be a majority stronger than 6-3?
If we take Kennedy at his word, the Prop 8 case gets dismissed, the lower court ruling stands and DOMA section 3 is invalid on a 10th amendment basis. If his “40,000″ children comment can be taken as an expression of his real views, then this covers all those bases on the most narrow grounds without even issuing another results-based standing decision.
This leads me to a discussion of an area of Constitutional law that is well known and widely studied, but never really seen for what it is, and that is the standing requirements under Article III. For decades this has been used as a vague excuse to avoid deciding issues not because it was unclear what the Court would do under precedent, but due to a murky judicial philosophy that they should only be deciding real cases. But then they do what they want the other way whenever they want. Also, finding some reason not to rule can be just as activist as not if you are avoiding upholding the Constitution or a clear precedent.
Sierra Club v. Morton is the most absurd example of this. The case was dismissed because, the Court said, the Sierra Club as a corporation didn’t have standing to assert any harm by the development of part of Sequoia National Park and, since their Complaint didn’t say any of their members wen there (guffaw), they had no standing. But, hey, the were allowed to amend their Complaint on remand!
What a waste of years and dollars and lives! Just to amend a Complaint. And then, a few years ago, they ditched ruling on whether the Pledge of Allegiance being amended in 1954 to include “under God” violated the Establishment Clause on a very strange standing argument.
In both cases, and potentially in both of the same sex marriage cases, the legal wise folk will tell us this is just how it is under the Constitution, as if, magically, Article III is the only part of the Constitution that isn’t subject to change or new rulings. Not true.
[Edit: A series of other possibilities include remanding the case for further proceedings—at least the Prop 8 case. I haven't read the decisions below, but perhaps the Supremes will clarify the standing rules and send it back down. This, in the end, I think means that it dies in a slightly modified version in the Ninth Circuit, an even more weasely way than I mentioned here before]
tl;dr They’re going to do whatever the hell they want, but I think they want to weasel out and leave it to the states.