Supremes are virtually guaranteed to decide same-sex marriage on political-and maybe moral-grounds

The Supreme Court’s Anti-Rainbow Warriors

by Michael Tomasky Mar 26, 2013 4:45 AM EDT

Forget the legal handicapping, says Michael Tomasky. This Supreme Court is virtually guaranteed to decide same-sex marriage on political—and maybe moral—grounds. Not a comforting thought.

I’ll leave it to the masters of the jurisprudential universe to handicap how the Supreme Court might deal with the two same-sex marriage cases in legal terms. But since this Court is the most nakedly political since at least the New Deal if not ever, I’ll do a little handicapping on political grounds, since it is largely on political grounds that I think the justices (especially the conservatives) decide things. The question, I think, comes down to two factors: how deeply this heavily Catholic conservative majority feels a collective moral antipathy to same-sex marriage; and the role this majority sees the Court playing in the post-2012-election era—what kind of role the Court should play in this alleged redefining of conservatism that’s going on. My hopes, it may not shock you to hear, are not high on either point, but especially the second one.

Let’s just go over the basics quickly. The Court is hearing two cases today and tomorrow, the Prop 8 case out of California and a challenge to the 1996 Defense of Marriage Act, which defined marriage federally as being between a man and a woman. Because the DOMA case also deals with issues of states’ rights, it seems to most experts I read that the Court will rule against DOMA. Liberal Scotus blogger Scott Lemieux of The American Prospect told me yesterday that he expects to see a 6-3 decision here against DOMA, or maybe even 7-2, leaving only Antonin Scalia and Samuel Alito defending the usual reactionary flank.

The Prop 8 case is more complicated. The legal question here involves whether to uphold a federal court decision from California that Prop 8, which defined marriage as between a man and a woman and passed as a ballot referendum in 2010, is unconstitutional. It can uphold the courts that ruled against Prop 8, in which case same-sex couples can start marrying, perhaps only in California, or perhaps across the nation, depending on how such a decision were to be written. It could strike the California ruling down on narrow grounds in a way that wouldn’t necessarily have much reach beyond California. Or it can say the courts were wrong, the voters were right, Prop 8 stands, and bans on same-sex marriage do not violate the Constitution.

Obviously, a lot is going to hinge on Anthony Kennedy. He has issued several pro-gay rulings. Maybe he’ll be all right. But let’s think now about where we are, and where this court might be, politically.

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http://www.thedailybeast.com/articles/2013/03/26/the-supreme-court-s-anti-rainbow-warriors.html