From Day One of the Supreme Court's hearings on Same Sex Marriage, some of the key questions to consider came from the "man in the middle" -- Justice Anthony Kennedy.
1. “I just wonder if the case was properly granted.” —Justice Anthony Kennedy
Kennedy twice asked whether the most prudent course would be, in effect, to punt.
Why might the justices conclude that they goofed in accepting the Prop. 8 case for review? Well, for one thing, the state of California itself has filed a brief supporting the challengers to its own law. The appeal is being pushed by a coalition of Californians who support Prop. 8 and have stepped into the state’s shoes to defend the provision. The Supreme Court may decide that these foes of gay marriage lack “standing,” as they have suffered no distinct harm and are not accountable to the state or its residents at large. If the Supremes decided this way, same sex marriage would still stand in California, but not make a sweeping Equal Justice Under the Law ruling.
2. “The voice of those children is important in this case, don’t you think?” —Justice Kennedy
The inquisitive Kennedy referred to the children of same-sex couples in California. He strongly suggested that, unlike the defenders of Prop. 8 and traditional conceptions of marriage, these kids do suffer “immediate legal injury” when their two moms or two dads are not allowed to wed officially. “They want their parents to have full recognition and full status,” Kennedy said, implying that the children in question have promising futures themselves as constitutional litigators.
If Kennedy and four colleagues were swayed by the voice of the children, they could announce a constitutional right to gay marriage nationwide. They could also choose a middle ground: a narrower ruling that created a right to gay marriage in California and perhaps some other states.
3. (From Day Two on DOMA) "Which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," -- Justice Kennedy
(From CNN.com)
The second session on same sex marriage and it constitutionality dealt with the Defense of Marriage Act, passed by Congress in 1996. It said, in part, that legally married same-sex couples cannot enjoy the range of financial and other benefits enjoyed by heterosexual married couples.
A Supreme Court justice is sometimes like a fussy 8-year-old. She must eat her peas before any dessert. The dessert, of course, in the same sex-marriage cases are the constitutional "equal protection questions" -- the ones that get to the heart of defining what marriage is all about, the ones the entire nation wants answered.
But Wednesday's green vegetables are the gateway or the jurisdictional barriers that must first be confronted. The justices spent the first 50 minutes of their two-hour argument deciding whether they should even be there. Can House Republicans defend the Defense of Marriage Act when the president refuses to do so?
It's no small matter. The executive branch, by tradition and statute, is charged with defending acts of Congress. The Obama Justice Department was doing just that when DOMA was being adjudicated by a federal judge in New York. Then an abrupt about-face. So one house of Congress decided it had to step in.
"Let's not confuse the issue of DOMA and the administration's decision that it was unconstitutional," House Speaker John Boehner, R-Ohio, told CNN last week. "It is not their role to decide what's constitutional. DOMA was a law that was passed by the House and Senate and signed into law by President Clinton.
"In our system of government, the administration doesn't get to decide what's constitutional -- the Supreme Court does. ... Our financing the lawsuit was to make sure the proper forum was used to make sure that we know what's constitutional and what isn't."
1 comment:
I was actually reading about this, especially since it was discussed recently, and was a bit confused that it would only affect a few states. If something this big isn't going to affect all 50 states, how is it going to make a difference? It'd just throw everything through a seriously complicated loop. I think, logically, it should be expanded to all 50 states.
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