Law Professor writes in NY Times that time is one our side and a sweeping decision requiring all states to permit same-sex marriages could energize an entrenched and relentless opposition as Roe and Brown did.
There are two potential narrow rulings in favor of marriage equality:
1) The groups seeking to preserve Prop 8 (not the state of California which did not appeal initial district court decision) lack standing (in other words has no real stake in the decision) which would let the 9th Circuit decision stand. Result: Same-sex marriage is restored in California. This is the professor's preferred outcome. It effectively leaves the decision entirely to individual states.
2) The Court could adopt the 9th Circuit's reasoning which would require the 8 states that allow all the rights of marriage except the name "marriage" to cease the word games which do nothing but denigrate same-sex couples. Result: Same-sex marriage becomes legal in 8 more states including California, New Jersey, Illinois and Oregon.
[bold]Deciding Not to Decide Gay Marriage[/bold]
By DAVID COLE
THE Supreme Court will begin hearing two days of oral arguments today on the constitutionality of Proposition 8, the 2008 initiative that banned same-sex marriage in California, and on the Defense of Marriage Act, the 1996 law that forbids federal recognition of same-sex marriage.
DOMA poses easier legal issues. The statute, which President Obama believes is unconstitutional and which has been repudiated by Bill Clinton, who signed it, inserted the federal government into marriage law, historically the domain of the states. It was clearly driven by antigay animus, and as lower courts have ruled, there simply is no good reason for Congress to refuse to treat all state-recognized marriages equally.
The Prop 8 case, Hollingsworth v. Perry, poses thornier questions about political equality, and could have much broader consequences, because it calls into question the rights of all states to limit marriages to unions between men and women. I fully support marriage equality. But, strange as it may sound, I believe that in the Prop 8 case, the court should decide not to decide the gay marriage issue at all. The proposition has already been struck down by federal judges at the trial and appellate levels, the governor and attorney general of California have refused to defend the proposition and the parties seeking the Supreme Court’s review lack the legal capacity, or standing, to pursue the case.
If the court decides to resolve the merits, it should rule that the Constitution commands recognition of same-sex marriage on equal terms with opposite-sex marriage. A decision to the contrary would be a modern-era Plessy v. Ferguson, the notorious 1896 decision affirming segregation as “separate but equal.” Correspondingly, a decision ruling Prop 8 unconstitutional would be the Roberts court’s Brown v. Board of Education, the 1954 decision that struck down racial segregation in schools. The legal and moral choice should be clear.
But the Brown analogy should give us pause. Same-sex marriage is legal in nine states and the District of Columbia, but is the country ready for a decision requiring all 50 states to recognize such unions immediately? Brown triggered a notorious backlash, in both the South and the North, and its impact was blunted by demographic changes and later court rulings, leading to what the education scholar Gary A. Orfield has called the “resegregation” of American schooling.
Or consider Roe v. Wade, the 1973 decision that protected women’s right to have abortions. Justice Ruth Bader Ginsburg, an unabashed defender of abortion rights, has criticized Roe for imprudently intervening in that debate, at a time when the idea of abortion rights was already gaining ground at the state level. The Roe decision galvanized the anti-abortion movement, with political impacts that still linger.