Gay Marriage at SCOTUS
Justices wary of Prop 8 ruling; majority voice scepticism on DOMA
The Supreme Court has held its long-awaited hearings on same-sex marriage, with several justices reluctant to judge California’s ban on gay unions but a majority hostile to a federal law which denies benefits to those in such partnerships.
During a session on Tuesday, both liberal and conservative justices wondered whether an appeal against a lower court ruling invalidating California’s Proposition 8 had been brought to them by the correct party. The likely swing vote, Reagan appointee Anthony Kennedy, said the State of California’s refusal to defend the ballot measure banning gay marriage meant there was a “substantial question on standing”.
Democratic appointees Stephen Breyer and Sonia Sotomayor were similarly concerned that the proponents of Prop 8 appearing before them were not the initiative’s proper defenders. Conservative justice Antonin Scalia hit back at his colleagues, saying it was too late for them to throw out the case.
On the merits of the Prop 8 case, the nine justices split along traditional ideological lines. Breyer and Obama appointee Elena Kagan hammered the lawyer defending the initiative when he argued procreation was the primary governmental interest in banning same-sex unions, while Chief Justice John Roberts said he wasn’t sure Prop 8 excluded a particular group.
Justice Kennedy appeared uncomfortable with sweeping arguments for striking down the ban, but played up a finding which showed children of same-sex couples in California support marriage rights for their parents.
A day later, Kennedy joined with the court’s liberal wing in expressing doubts about the Defence of Marriage Act, which restricts federal benefits available to same-sex couples in states where gay marriage is legal. However, he was more critical about Congress’s right to enact the law than of the anti-gay motives behind it.
The DOMA hearings also saw lengthy discussions about the standing of the parties involved in this case, but a majority of the justices sounded like they were ready to rule on the matter. The most notable intervention came from Clinton appointee Ruth Bader Ginsburg, who accused the lawyer defending DOMA of promoting “a sort of skim milk marriage”.
Rulings on both cases are likely to be handed down in June. While DOMA is almost certain to be declared unconstitutional, the future of Prop 8 is less clear. The court could dismiss the California case as “improvidently granted” – leaving a lower court ruling which nullified the ban in place – or find that Prop 8’s defenders had no standing.
The latter option might force the case back into California’s district courts and create uneven rules about marriage in the Golden State.
Commentators expect narrow outcome
Pundits have been assessing the significance of the Supreme Court’s arguments, amid predictions the justices will produce a very narrow ruling on Proposition 8 but invalidate DOMA.
Politico’s Josh Gerstein stated gay rights advocates ‘might just win’ both of the cases, but added the justices were unlikely to deliver the ‘transformative moment’ which the LGBT movement desired.
The New Yorker’s legal correspondent Jeffrey Toobin was somewhat less downbeat,suggesting the ‘mellow vibe’ of the hearings indicated ‘same-sex marriage is here to stay’. The possibility DOMA might fall was for the most part welcomed. Toobin’s colleague Amy Davidson deplored the legislation’s discriminatory bent and argued it ‘cannot be overturned too soon’.
Several observers considered the role Justice Anthony Kennedy might play in the rulings.
Election Law Blog’s Rick Hasen argued Kennedy’s concern for states’ rights in the DOMA case could be significant for other contentious issues before the Supreme Court this term, most notably voting rights.
There was also widespread coverage of Justice Ginsburg’s ‘skim milk’ remark, Chief Justice Roberts’s comments about the political power of gay people and a ‘gotcha’ moment in which Justice Kagan skewered the rationale behind DOMA.
Democrats scramble to endorse SSM
A slew of Democratic senators came out in favour of same-sex unions before this week’s hearings, among them red-state lawmakers up for re-election next November.
On Sunday, Missouri’s Claire McCaskill said she now believed “our government should not limit the right to marry based on who you love”. Virginia’s Mark Warner and Alaska’s Mark Begich followed suit on Monday, with Montana’s Jon Tester joining the bandwagon on Tuesday and North Carolina’s Kay Hagan changing her position on Wednesday.
Two retiring Democrats, West Virginia’s Jay Rockefeller and South Dakota’s Tim Johnson (see below), said they no longer supported the Defence of Marriage Act.
In another sign of the shifting debate on gay marriage, ultraconservative Republican Senator Ted Cruz said he backed “traditional” unions but added “the constitution leaves it to the states” to decide the issue.
The Texan joins his right-wing colleagues Marco Rubio and Rand Paul in opposing any federal move to define marriage as between a man and a woman. Alaska’s moderate GOP Senator Lisa Murkowski has stated her views on gay marriage are “evolving”.
Related polling: [CNN] [Pew] [Columbus Dispatch – OH] Other NewsPrez backs senators to reach immigration accord President Obama has said he is optimistic a bipartisan group of senators working on immigration reform will produce legislation following the Easter recess, as members of the Gang of 8 insist a deal is possible.
Speaking to Spanish-language network Telemundo, Obama claimed the Gang had “come close” to finishing its work and said he expected a bill from the group next month. He batted away suggestions he could introduce his own proposals if progress stalled, saying he would not “presuppose” a lack of agreement.
At a press conference from the border region on Wednesday, Democratic Senator Chuck Schumer said there were only a “few little problems” left for the Gang to resolve. His GOP colleague John McCain has said he is “guardedly optimistic” even though the group is “running out of time”.
In a separate interview with Univision, Obama reiterated his willingness to improve border security as part of a deal, although he again said his administration had made “enormous progress” on this.
Homeland Security Secretary Janet Napolitano has repeated her unease about including a ‘border trigger’ in legislation, something which would require the frontier with Mexico to be declared secure before undocumented immigrants in the US could apply for citizenship.
Contentious talks between unions and business organisations over a new visa programme for low-skilled workers continue, according to sources engaged with the Gang of 8. The senators have also said their work will not be jeopardised by a party-line vote that took place last week on health benefits for undocumented aliens.
Senior Republican crafting rival gun bill
A gun control package proposed by Senate Majority Leader Harry Reid may have competition after it emerged Iowa’s Republican Senator Chuck Grassley is putting together his own bill.
A spokeswoman for Grassley – who is the ranking member of the Senate Judiciary Committee – said on Thursday the Senator was composing an alternative to Reid’s legislation which “doesn’t violate the constitutional rights of law abiding citizens”.
Grassley’s bill could include proposals supported by red-state Democrats, but is not yet fully finalised. Senate Minority Leader Mitch McConnell has also for the moment declined to offer his unequivocal support.
Some Democrats from pro-gun states have pledged support for enhanced checks in recent days, although others including Arkansas’s Mark Pryor remain hesitant. President Obama emphasised the need for improved checks during an event on gun control held at the White House on Thursday.
New information was released about the Sandy Hook and Tucson gun tragedies this week. The suspect accused of killing 12 people in Aurora last July is attempting to plead guilty in order to avoid Colorado’s death penalty.
Obama budget plan on the way
President Obama will release his own budget proposals on 10th April, the same day he is due to have another high-profile meeting with Republican senators.
The White House revealed on Thursday that the president’s outline would be made public two days after the upper chamber returns from its Easter break. The plan – which was reportedly delayed by two months because of discussions on spending – is also likely to hang over a second working dinners cheduled for Obama and members of the GOP senate caucus by Georgia Senator Johnny Isakson.
Earlier in the week, the president signed a congressional measure which kept the government funded through the fiscal year but did not deal with substantial cuts that took effect at the start of March.
White House Press Secretary Jay Carney reiterated the administration’s concern about the impact of sequestration and insisted it had not lost the broader argument over revenue rises and entitlement cuts.
At the end of last week, the Senate waded through a glut of amendments to pass its first budget in four years. Budget Committee Chair Patty Murray’s plan was ultimately approved by 50 votes to 49, with four red-state Democrats including Finance Committee Chair Max Baucus opposed.
Baucus’s resistance is significant as he would have responsibility for fleshing out the revenue increases and tax reforms proposed by Murray.
SD Senator decides to quit
South Dakota’s Senior Senator Tim Johnson has announced he will not run for another term, handing Republicans a fresh pickup opportunity in next year’s congressional elections.
Johnson – who suffered a brain hemorrhage in 2006 – said he now felt “great” but wished to spend time with his extended family. The 66-year old was already facing a challenge from South Dakota’s former GOP governor Mike Rounds, who stated his intention to run for Johnson’s seat back in November.
In other election-related news, actress Ashley Judd has said she will not run for the Senate seat in Kentucky currently held by Minority Leader McConnell.