Yesterday and today (March 27, 2013) the US Supreme Court heard arguments in two cases regarding same-sex marriage and its subsequent legal benefits.
The first case was a challenge by a coalition of anti-gay rights groups including private citizens and religious institutions from California. They are challenging the striking down as unconstitutional California’s 2008 Proposition 8 by a US Appeals Court. “Prop 8” was voted in by a majority of California voters in 2008. It amended the California state constitution to ban marriage between same-sex couples. California state officials refused to oppose the striking down of the ban, so the aforementioned coalition led the challenge to the Supreme Court.
Based upon the questions raised by the Supremes when listening to the arguments yesterday, many expert observers believe that the court will attempt to stealthily slide away from a strong national all-encompassing decision one way or the other. Instead, it is possible that the court will either rule that the pro-ban plaintiffs, being private groups, have no standing to present their challenge, which will let stand the lower appeal court decision of unconstitutionality, or they may narrowly rule in some other way that only affects California.
The second case involves a challenge to the 1996 Defense of Marriage Act . The operative portion of this federal law states that the federal government only recognizes man-woman marriages for any and all legal purposes and benefits, such as tax issues, estate issues and so forth. Fully eight appeal courts have already found that provision of the law to be unconstitutional.
This case (United States vs. Windsor) is unusual because the US Department of Justice (DOJ), which would normally be defending the law, actually now also agrees that the law is unconstitutional. Bizarrely, a little-known group called the Bipartisan Legal Advisory Group of the GOP-controlled US House of Representatives (BLAG) has petitioned to defend the constitutionality of DOMA before the Supremes.
The expert observers believe that DOMA has a better chance of being overturned by the Supremes as being unconstitutional. In fact, it is even possible that they may also rule that BLAG has no standing to present arguments in favor of DOMA.
That would be a blow to the GOP in general and the ultra-conservative base of the GOP in particular. Through BLAG, the GOP-controlled US House of Representatives has put the US government in the bizarre position of both defending and opposing DOMA. This agenda was pushed by the socially conservative religious far right wing base of the republican party. They are the same folks who are largely responsible for lunatic laws like the one recently passed and signed in North Dakota against a woman’s right to choose abortion once her fetus reaches six weeks or when a heartbeat can be detected (whichever occurs sooner), which in many cases is before many women even know they are pregnant. Such repressive laws spring up wherever the extreme religious right can muster a majority of votes in state legislatures. That has a tendency to occur in states with a high proportion of rural white residents, such as North Dakota.
The bad news for the GOP is that according to the latest polls, 53% of Americans support gay marriage:
Put another way, at least 53% of Americans DO NOT support the traditional religious definition of one man-one woman marriage ONLY. And more bad new for the GOP’s base: Only22% support the Tea Party movement!
The Supremes are divided between between 4 conservative justices and four liberal justices, with one justice, Anthony Kennedy, considered the swing decider in many 5-4 decisions. Still, despite the questions they ask of petitioners via oral arguments in open court, the nine justices meet in private and discuss the cases they hear. They seem to be able to work together even if they ultimately will disagree on the final decision they issue forth. And as the third branch of the US government, they co-exist with the other two branches. One never hears of the Supremes bashing the administration or each other.
On the other hand, the GOP congress bashes everyone and everything that disagrees with them. Consider the following GOP war list:
War on women;
War on gays;
War on immigrants;
War on atheists;
War on all non-Christian religions;
War on government;
War on unions;
War on public employees;
War on minority voters;
War on the environment;
War on regulations;
War on infrastructure;
War on taxes;
War on science;
War on logic;
War on minority voters;
And, of course, war on the first US African-American president.
It is therefore easy to imagine that if the Supremes rule in favor of gay marriage, even in a limited way, and/or find DOMA unconstitutional, the GOP will want to get even with those who decided to legislate from the bench, a.k.a. those “activist judges”. So get ready to watch their
War on the Supremes! 🙂