High court sets up showdown over gay marriage

[Geee]

Washington Times:

The Supreme Court said Friday it will take up two hotly disputed cases involving gay marriage in federal law and the state of California during its current term.

The late-afternoon announcement means the high court will finally weigh in on the constitutionality of laws that define marriage as only the union of a man and a woman. Under the constitutional microscope will be the 1996 “Defense of Marriage Act” (DOMA) signed by President Clinton that says the federal government would not recognize state-sanctioned same-sex unions and the separate fight in California over the voter initiative Proposition 8 that blocked gay marriage.

Both supporters and opponents of gay marriage expressed satisfaction that the court had agreed to take up the cases.

“We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said John Eastman, chairman of the National Organization for Marriage, which opposes same-sex marriage. “We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8.

For their part, gay-rights activists said they were pleased the court will take up the case of same-sex widow Edith Windsor in her case against the federal law.

[Valin]

Gay Marriage Comes to the Supreme Court

Adam Freedman

12/8/12

 

(Snip)The two cases should raise distinct issues. When considering DOMA the Court should address whether the law raises any federalism concerns. I think it does (even though such concerns may not be fatal to the law). Traditionally, when federal law refers to "marriage" or related concepts, the feds defer to state law to determine whether a given marriage is valid. DOMA doesn't force states to change their laws, but it puts a thumb on the scale. The Court needs to discuss under what circumstances the federal government can (how shall I put this?) encourage states to change their internal laws. For example, can the federal government create its own definition of a valid corporation, etc.?

 

But, alas, the Supreme Court may not reach the federalism issue because the lower courts barely touched it. In the DOMA case (Windsor v. United States), the Second Circuit basically used an Equal Protection analysis. What is notable is that the court held that traditional marriage laws must meet a heightened level of scrutiny because they presumptively discriminate against a "quasi-suspect class" (homosexuals) who, collectively, lack political power.

 

(Snip)

 

The Prop 8 case is a Ninth Circuit decision penned by the paleo-liberal judge Stephen Reinhardt. Reinhardt also based his decision on Equal Protection. Although he claimed that his decision was limited only to the specific facts of the California law, the rationale is fatal to other traditional marriage laws.

 

In the Equal Protection rulings, the lower courts have been ignoring Supreme Court precedent -- we'll see if the High Court lets them get away with it. In 1972, the Court held that Minnesota's traditional marriage law did not raise any issue under the Equal Protection Clause (or any other constitutional provision) (Baker v. Nelson). The Court has never revisited that decision. In 2003, when the Court struck down anti-sodomy laws, the majority promised that its decision (Lawrence v Texas) had no bearing on same-sex marriage because there are other reasons for a state to preserve traditional marriage "beyond moral disapproval of an excluded group," as Justice O'Connor put it.

 

(Snip)

 

 

What we could be seeing here is a battle between the 10th amendment and the 14th amendment.