Quote:
Originally Posted by Vexx
The reporter needs a little slapping around. You really can't make *any* prediction of a ruling based on the questions from the bench or whether the advocates put their feet in their mouths.
The SCOTUS is playing debate - examining all the sides of a an issue out loud, sometime's being their own devil's advocate - then they go bury themselves in judicial precedence and intent.
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The Court will almost certainly punt the
Proposition 8 case on the grounds that the appellants, who are some of the proponents of the original ballot measure banning same-sex marriage in California, have no "standing." They cannot show any direct harm from the striking down of the ban by the Appeals Court, so they have no grounds for appeal. The Court does not want to rule on whether same-sex marriage is
per se constitutional, and the standing issue gives them a convenient escape route.
The
DOMA case is a different matter entirely. Here I expect the Court to uphold the Court of Appeals ruling that overturned Section 3 of DOMA on
Fourteenth Amendment ("equal-protection") grounds. Section 3 forbids the Federal government from recognizing the validity of same-sex marriages conducted in states where such marriages are legal like mine (Massachusetts). Until DOMA passed in 1996 the standard for defining "marriage" was whatever a state considered as legal. In order for the Federal Government to discriminate among persons, it has to meet some rather stringent tests to prove there are grounds for such discrimination. All four Democratic appointees, and Justice Kennedy, appear to believe DOMA does not pass those tests, and perhaps a couple more will sign on as well. I would not be surprised to see this part of DOMA struck down by as many as six or seven of the Justices.
However the other important section of the law, Section 2, still exempts states from having to recognize the validity of a same-sex marriage conducted legally in another state. This will lead to a horrible mess for some period of time where a couple living in Massachusetts will be eligible for Federal benefits and will be able to file taxes as a married couple if they remain in the state, but if they were to move to Florida, those benefits and privileges will disappear. At some point the Court will have to address the matter of the "
full faith and credit" clause of the Constitution that requires states to treat each others' laws as valid. DOMA was passed exactly to avoid this problem when it started to look like Hawaii would legalize same-sex marriage. The fear among conservatives was that this decision would necessarily impose similar requirements on the other states under the "full faith and credit" clause.
The comments by Chief Justice Roberts during the opening arguments yesterday were surprising. He upbraided President Obama for continuing to enforce Section 3 even though he and his Justice Department believe it to be unconstitutional. It turns out there are
various precedents for Presidents to ignore legislation that they think are unconstitutional, but they probably do not apply in this case (see item 5 in that link). Also I'm sure Roberts knows full well that if the President were to start paying Federal benefits to same-sex couples in advance of the Court's ruling, an impeachment bill would be moved in the House the next day.