I've not been posting much lately — only once a week or less often. And I notice that most of my favorite blogs, like Dennis Sanders' “Big Tent Revue” and Tom Bowler's “Libertarian Leanings,” have also slacked off. I wonder if this is because Barack Obama's Presidency is going to last till 2017, and nothing we say can change that? (And of course, even Congressional elections are 1½ years away.)
Next month, the Supreme Court will probably issue its decisions on Hollingsworth v. Perry (the California Prop. 8 case) and United States v. Windsor (the case challenging the so-called “Defense of Marriage Act”). I will certainly post comments on these decisions once we know what they are. But until then it is mere speculation. I know how I would rule. On Windsor, it is clear to me that DOMA is unconstitutional, because it conflicts with the Tenth Amendment-based right of States to define “marriage.” On Hollingsworth, my feeling is more nuanced. Because of that Tenth Amendment argument, it is not appropriate to declare same-sex marriage legal everywhere in the 50 States. Appeal to the precedent of Loving v. Virginia is attractive, and probably if there were more than 11 states with same-sex marriage on the books, would make sense. But clearly there is not a nationwide consensus on this issue. I think, if I were a Supreme Court Justice, however, the precedent I would follow is Romer v. Evans. Basically, to take away rights that people already have is unconstitutional, and this is what Prop. 8 did. And on this basis, the Court would, in my opinion, be right to invalidate Prop. 8, while not forcing those states without laws authorizing same-sex marriage on the books to institute it.
But this is my position. i cannot get inside the heads of the nine Supreme Court justices. So I cannot comment on their decision until they issue it, probably next month.
Next month, the Supreme Court will probably issue its decisions on Hollingsworth v. Perry (the California Prop. 8 case) and United States v. Windsor (the case challenging the so-called “Defense of Marriage Act”). I will certainly post comments on these decisions once we know what they are. But until then it is mere speculation. I know how I would rule. On Windsor, it is clear to me that DOMA is unconstitutional, because it conflicts with the Tenth Amendment-based right of States to define “marriage.” On Hollingsworth, my feeling is more nuanced. Because of that Tenth Amendment argument, it is not appropriate to declare same-sex marriage legal everywhere in the 50 States. Appeal to the precedent of Loving v. Virginia is attractive, and probably if there were more than 11 states with same-sex marriage on the books, would make sense. But clearly there is not a nationwide consensus on this issue. I think, if I were a Supreme Court Justice, however, the precedent I would follow is Romer v. Evans. Basically, to take away rights that people already have is unconstitutional, and this is what Prop. 8 did. And on this basis, the Court would, in my opinion, be right to invalidate Prop. 8, while not forcing those states without laws authorizing same-sex marriage on the books to institute it.
But this is my position. i cannot get inside the heads of the nine Supreme Court justices. So I cannot comment on their decision until they issue it, probably next month.
No comments:
Post a Comment