After two days of hearings at the US Supreme Court it's not for certain whether gays and lesbians will finally win their hard fought for right to marriage equality across the States. The transcripts don't in my opinion give too much of a clue, at least in the first case. But I have a couple of observations.
The first day concerned California's Prop 8, the gay marriage ban that was shockingly approved the same day Obama won his first term as President -- and obviously, many who voted for him on the economy also voted for the ban for ethical reasons. While it was 52-48 yes, then and polls now indicate that people would remove the ban 63-37, it's still not clear what this court will do even though the Ninth Circuit struck it down.
Gay marriage is now legal in Washington DC and nine states; two more recognize gay marriages contracted in other states. But from the hearing on Tuesday, some suggestions were made the court may decide not to decide and throw the case out all together.
This strategy would be known as a DIG -- a denial for improvident grant of certiorari (cert means the court grants leave to appeal and issues a certificate ordering the lower court to send up transcripts, docket books and the decision itself for review before oral arguments, about 80 to 100 cases per year). Leave granting is rare, about 8000 or so applications are tossed out for lack of a "federal issue" while another 300 to 400 are decided on summary judgment based the merits of the case and without a hearing.
Why a DIG? Such a strategy is used when after leave was granted the court decides it wasn't ready yet to even to hear such a case. But if that's true, then why all this thumb twisting? The court really does need to decide. That 12 jurisdictions have affirmed gay marriage, and the other 39 ban the practice all together is bizarre.
This isn't worker's compensation which rightfully is a state issue. This is about families. And even if the state bans are upheld, the court needs to make clear that the full faith and credit clause means if you're marriage in one state or territory you're married in all of them -- in other words, you have to enforce custody orders from other states and have to give the same fringe benefits and entitlements to gay couples as well as straight no matter what your state laws otherwise say.
The court has to do the right thing. Strike down Prop 8 and say marriage is a union of two people regardless of the sex of the partners.
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The second day of hearings on gay marriage dealt with DOMA, the Defense of Marriage Act. Interesting that Obama decided to demur the appeal to the Tea Party. That will help the case go against the act, actually. But more important is that the court wasn't so much concerned with gays and lesbians collecting federal benefits as it is with the fact the 1996 law was so encompassing. According to some justices, 1100 statutes were amended. If the law was just one sentence -- that a marriage is one man and one women to the exclusion of all others -- it might still be on shaky ground especially given how so many people have changed their minds and now support gay marriage and a court can't necessarily ignore public opinion while deciding. But the fact so much was covered in the law may bolster the case that rights were trampled on multiple times even if inadvertently.
However as Chief Justice G. Roberts pointed out on day one and reemphasized on day two the Constitution requires a President to defend laws on the books even if he or she disagrees with it, and that they "faithfully execute the laws". This is certainly also a shot at numerous Presidents who sign laws symbolically but then issue a signing statement they won't enforce it in whole or in part.
He's got a point. Even if the President favors gay marriage and thankfully he does, he should have tried to come up with some kind of plausible way to defend the law rather than throw the hot potato to Sarah Palin and company.
This one looks like it is definitely going down and it should. But a void for vagueness argument would be unacceptable too as much as an overreach decree. Just say it's wrong and give all families the same rights to benefits as well as access to hospitals for family visits. How hard is that really?
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One last thought. At least a few of the intervenor groups against gay marriage say that they are against it because to allow it would infringe on their freedom of religion. Seriously. Wasn't that the same argument men made a century ago about why women shouldn't have the vote? Or people of colour shouldn't have equal rights? Or women active personnel shouldn't be allowed to live on military base housing like male officers?
And let's not forget restrictive covenants against Jewish people which lasted in many neighbourhoods especially wealthier ones well into the 1970s.
Even people who identify with a religious group don't necessarily practice it, they just want something to belong to. If people are offended they can just look the other way inside and stew inside their hatred. Being opposed to something is one thing, actively denying that something to someone else is another.
The ship has weighed anchor from the harbour. We should all be on that ship. It's all of us or none of us -- straight, gay or otherwise.
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