Every Wednesday I will write a political issue that affects you and the world on you.
This week: SCOTUS and the Cold Feet Syndrome
Just when you thought there would be a sweeping vote on Gay Marriage on the court, The Supreme Court is now hesitant than ever to walk down that aisle and exchange vows on both sides of the issue.
In both oral arguments that took place yesterday and today, in cases of Hollingsworth v. Perry (Prop.8) and the Defense of Marriage Act (DOMA), Justices both liberal and conservative are reluctant to move quickly on this issue of Gay Marriage.
Yesterday in the case of Hollingsworth v. Perry, Justice Anthony Kennedy, a swing voter, wasn’t entirely sure whether the dispute over California’s Proposition 8 should be in front of the court at all–saying this in his line of questioning: “You might address why we should take and decide this case.” There were at least four other justices, including conservative Chief Justice John Roberts, and liberals Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor who also raised similar questions.
The issue at hand is whether or not Proposition 8 has the procedural grounds to address it at the federal level. Reasoning being that it would only impact some parts California and not the rest of the states in the U.S. Proposition 8, which was voted as constitutional in 2008 elections, was appealed at lower court ruling at the 9th circuit and deemed it as unconstitutional. Furthermore, the Justices would be only deciding if they should overturn or keep 9th Circuit decision intact. What’s interesting about this measure is that the same majority of Californians who voted for Prop. 8 also voted for President Barack Obama on the same day that it was introduced. California is also a Blue State. And so the image is this: Should the Federal Government rush or interfere with states’ rights, which through the democratic process, California voted for Prop. 8? Justice Samuel Alito, a conservative, also said this in response to the merits Prop 8: “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean…we do not have the ability to see the future.” So again this issue is more of a state issue than it is a federal one–now, onto the case of DOMA.
The issue here is basically the definition of marriage itself and whether or not a married couple [in the eyes of the Federal government] can receive benefits regardless of sexual orientation. When it was passed, it was passed on the traditional definition of marriage; not hate inspired. However Justice Kagan, a liberal justice, jumped on the opportunity and provided a rare “gotcha moment” when she cited 1996 House Judiciary Committee report on DOMA that lawmakers supported the law based on dislike on homosexuality.
As much as it is a civil rights issue, this is also a State vs. Fed. Government issue. Can Fed. Government recognize a State’s Definition (NY, MA, etc.) of marriage as constitutional, OR vice versa. And so today, the oral arguments started with a woman in New York, Edith Windsor, who paid $363,000 in federal estate taxes after her same sex spouse died in 2009 under DOMA. But what through a wrench into this was Justice Kennedy questioning, along with Chief Justice Roberts, and Antonin Scalia, about why this administration (Obama) has been enforcing the law although they have deemed it as unconstitutional?
“If the president doesn’t think a law is constitutional then he shouldn’t sign it..” Furthermore Scalia, said that Obama ushered in a “new world” when the executive branch does not defend a statue.
Today’s case didn’t squarely address the issue of whether the Constitution requires states to allow same-sex couples to marry. Rather it asks whether the federal government has a legitimate basis to treat such couples differently.
In summary these two past days of oral arguments have been interesting. Both conservative and liberal Justices shocked the nation with their line of questioning, but it all boils down to this: Five conservatives (Roberts, Alito, Scalia, Kennedy, Thomas) vs. Four Liberals (Kagan, Ginsburg, Sotomayor, and Breyer). Majority wins consensus and one potential swing voter can change the outcome; and Kennedy has already shown cold feet. SCOTUS will deliberate in June.