State’s right to ban gay marriage?
With the announcement that the Supreme Court will hear oral arguments on the constitutionality of California’s Proposition 8 that banned gay marriage, conservative Supreme Court justices were victorious in pushing their “original intent” perspective of the constitution.
Serves no purpose
If a majority of justices really felt that a ban on gay marriage was unconstitutional, they would have let the lower court ruling nullifying Prop. 8 stand. There is nothing to be gained by opening up the appeal for review if you are one of the progressive justices. The Ninth Circuit Court of Appeals that heard the appeal and ruled against Prop. 8 in February 2012, specifically wrote,
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for ‘laws of this sort.
If you are a Supreme Court judge that concurs with this opinion, there is not much else to be added.
Gay marriage is not the issue
However, I don’t think the conservative justices really care about gay marriage. They realize that with states actually voting to make gay marriage legal and public opinion polls showing Americans supporting same sex marriage, their opinions and ruling will have little impact. The bigger issue for the court is state’s rights. Several of the justices adhere to the philosophy of interpreting the constitution from the perspective of the original intent of the authors of the constitution.
Remember the Confederacy?
The ultimate in state’s right.
It has always been clear that the founding fathers and the framers of the constitution favored strong autonomous state governance, federalism, over an organizational chart where the federal government initiates and consecrates all laws and regulations. (Supreme Court justices that have been members of the Federalist Society include Antonin Scalia, John G. Roberts, Clarence Thomas and Samuel Alito). Even after the the weak central federal government system failed under the Articles of Confederation, the 10th Amendment to the U.S. Constitution was added to guarantee state’s rights.
10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Two dads and a son.
Nothing will stop gay marriage
The conservatives on the court know that if they uphold Proposition 8’s prohibition on same sex marriage, California will just introduce another referendum to reverse the ban and legalize gay marriage. While some of the justices may be opposed to gay marriage for religious or philosophical reasons, their broader goal is not to stop gay marriage. By upholding Proposition 8, they will create judicial precedent that allows states to enshrine discrimination in their constitutions.
State’s rights trump discrimination laws
Two moms walking their son in the Marin Headlands.
Based on past quotes from Supreme Court Justices, it seems plausible that there are members on the court that would argue that Lincoln’s emancipation proclamation was in violation of the 10th Amendment. Until the 13th Amendment was ratified abolishing slavery there was nothing in the constitution that prevented states from making slavery illegal. Conservative justices that insist on viewing the constitution through the lens of the “original intent” doctrine want to bolster that position by over turning the United States Court of Appeals for the Ninth Circuit decision that Prop. 8 is discriminatory and unconstitutional.
Life value determined by state residence
Because the constitution has no mention of marriage and marriage is really nothing more than a condensed secular contract under the eyes of all levels of government, I am inclined to believe that a majority of Supreme Court justices will conclude that laws governing marriage should be left to the states and not dictated by the federal government. This sort of state’s right ruling also will play into the hands of those who favor restrictive and discriminatory voter identification laws. We also see this rational with the death penalty. Some states have the death penalty while others do not. Under the state’s rights system, the value of someone’s life is partly dependent on which state he or she resides in.
Don’t be surprised
So get ready for the “non-shock” of the Supreme Court upholding Prop. 8. It’s not that they hate the LGBT community, they just have this distorted world view that the definition of basic human rights can change from state to state.