Larry Smith gives his weekly US politics round up.

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.

Reaction to the hearings from President Obama and House Republicans can be found here and here. 

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.

BuzzFeed’s LGBT reporter Chris Geidner notedthe California native sent ‘mixed messages’ on Proposition 8, but appeared ready to side with the court’s liberals when it came to DOMA.

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”.

Comments are closed.