My occasional insomnia sometimes leads me to research controversial topics. In case anyone cares, you can get a good summary of the pro here, and the con here.
The various recent legal opinions are as follows:
Golinski v. U.S. Office of Personnel Management
Gill v. U.S. Office of Personnel Management
Perry v. Brown (Prop 8 case).
Windsor v. United States
The Supreme Court is supposedly conferencing to decide what if, any of these cases hear.
My "I got an A- in con law 8 years ago" opinion is as follows:
1. The Prop 8 case can easily be punted on Romer. It will have the effect of legalization same sex marriage in California, and that is it. I would be surprised if SCOTUS wastes time on this.
2. Section 3 of the Defense of Marriage Act is probably a goner on any theory, but the easiest and least controversial way to adjudicate is hold states decide who is married and who is not because states have historically been the authority to determine what a marriage is. Some states have common law marriages, some don't, some you can marry your cousins and some you can't and so forth - a simple argument is the Feds have no business determining what the states can determine marriage to be.
3. However, the real issue is whether DOMA as a whole is unconstitutional and going to the next step whether any state ban on same sex marriage is constitutional. I believe it is clear both DOMA and any ban on same sex marriage fails the "strict scrutiny" or "intermediate scrutiny" test. However, I think there is some flimsy merit to the "rational basis" test, it is a pretty low bar to pass and I think some of the myriads of arguments about encouraging heterosexual couples to not have kids out of wedlock might pass muster. Judge Faler would apply one of the higher levels so it would be moot.
4. I am certain the liberal wing of SCOTUS is chomping at the bit to take the DOMA cases as is the conservative wing, both for opposite reasons. However, this puts CJ Roberts in a bind. Justice Kennedy who authored Romer and Lawrence is probably likely to find some part of DOMA unconstitutional. If he authors the opinion it could range from very narrow to overturning Section 3, or very broad overturning the entire thing. While, I don't agree with the CJ on much, he is unlike Scalia / Thomas intellectually honest. My guess is his preferred option is to let the states sort it out, however with the issue on his desk, he will probably join the majority and attempt to craft some sort of narrow plularity opinion holding homosexuals as a class are only entitled to rational basis review and on those grounds Section 3 is unconstitutional and then not rule on the rest and hope it doesn't come back for awhile. Then there will be a bunch of concurrences and dissents that will be entertaining but as binding as a tentative ruling on a relief stay motion. End result is really no binding precedent.
I don't envy CJ Roberts position. He is going to piss off a large, passionate group of people one way or the other. However, he already did this on the Obamacare case, so he probably doesn't care about that. I am certain he knows that same sex marriage is the way of the future, but he believes it should be resolved in the legislative process and not by the courts. Unforuntately, for him he will be forced to make a decision he doesn't think he should make.
5. This is my last point. The anti-same sex marriage offers a lot of reasons for their position ranging from tradition, procreation, saving the government money and encouraging two parent households. All of these arguments are largely devoid of support and/or legal merit. The only possible answer for their strident opposition to same sex marriage is they don't like gay people. Maybe they think gay people are just making a lifestyle choice (as an aside, who cares? People choose their religion and that gets strict scrutiny), or they are sinners who will burn in hell. People used to say the same things about inter-racial marriage. That got overturned in 1967. It is time to do the same.
P.S. - I find the Golinski matter even more fascinating as the illustrious Judge Koz apparently not only serves as the 9th Cir. Chief Judge, he also is in charge of administrative decisions, and in this case Golinski had to goto a lower court to get a writ of mandate on Judge Koz's administrative decision to give her benefits. I've said this many times, I heart Judge Koz for so many reasons I can't list here. Why he isn't on the Supreme Court is beyond me.
P.P.S - I should amend point 5 a bit. A lot of conservatives fully support same sex marriage ranging from Dick Cheney, Ted Olsen (counsel for Plaintiffs in Prop 8 case), and the troupe of conservative legal scholars here. Putting it bluntly only religious conservatives are against it, the same group holding Republicans back...coincidence??
P.P.P.S. - No discussion of con law issues is complete without a look to see what contracts professor / conservative legal guru, Tom Smith has to say on the topic. Sadly, I was unable to find anything on point. But for entertainment value, read his posts discounting Nate Silver pre-election and his later half-ass mea culpa. Almost as good as Dick Morris. He also quotes R.E.M. in a post, which means TS and I agree on at least one musical selection.
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