SCOTUS to pass on same sex marriage?

posted at 10:01 am on December 1, 2012 by Jazz Shaw

While most of the nation’s attention has remained focused on the fiscal cliff, business as usual continues in the judicial branch. And for those who have been closely following the court battles over same sex marriage, Friday had been anticipated to be a big day. The highest court was supposedly set to announce whether they would be taking on as many as ten cases related to this subject. But, as Lyle Denniston of SCOTUSblog reports, the day wore on into late afternoon and resulted in precisely… nothing.

The Supreme Court, after taking most of the day to prepare new orders, took no action Friday on the ten same-sex marriage pleas now on the docket. It did agree to rule on whether taking a human gene out of the body for research is a process that can be patented…

The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday. Nothing has ruled out the possibility that some actions on same-sex marriage could be announced at that time, although there is no indication that that will occur. It may be that the Court needs more time to decide what it wants to do next on any of the cases. If the Court has chosen to deny review of all of the cases, even that might not come out on Monday, since the chances are that there would be dissents from some of the denials, and it would take some time to prepare dissenting opinions. But denial of all of the cases is an extremely remote possibility anyway.

It’s important to remember that all of this is simply procedural work at this stage of events. There is no imminent decision forthcoming on the constitutionality of any laws. All the court is really doing at this point is essentially triage. They have been reviewing a large number of cases and determining which ones have sufficient merit and standing for them even to be heard, and then schedule a slot on the docket to hear arguments. Even if some of these cases are accepted, the next open slots to hear them are in March, so we shouldn’t be expecting any sort of ruling until well into the Spring of next year at least.

But will they take on any or all of these cases? I tend to agree with Denniston in thinking that this shouldn’t be taken as a sign that they’ll all be rejected. They probably wouldn’t have lasted this far through the review process if they completely lacked merit, and a notion to not hear them would likely face some stiff resistance from any members who are “spoiling for a fight” on either side of the question. And even the process of rejecting them would be time consuming. Also, the court hasn’t been shy about tackling controversial subjects, as recent history has shown us.

But some of the bigger questions which many of us have may still not be answered, even if the Supremes tackle all of them. Is the Defense of Marriage Act constitutional? In particular, it’s sections 2 and 3 of the law – and this is really the heart of the entire question – which are one of which is up for review. The text is as follows:

Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

The primary argument is that the result of these two sections fly in the face of the Full Faith and Credit Clause of the Constitution. And while it’s unpopular to say so in conservative circles, it’s tough to argue that it doesn’t … if we are to accept that a marriage license is part of the “public acts, records, and judicial proceedings” of the individual states. But that’s where it gets tricky for people on both sides. Is marriage an “official institution” which should fall under the control and regulation of the government at any level? Or is it a strictly personal matter? And does the federal government really have the power to say anything about marriage, or is it something which should be left exclusively to the states as per the 10th amendment?

You may have your own strong feelings about it in either direction based on an emotional response to a hot button topic, but the legal complexities are daunting. These are the questions I’m hoping to hear answers to, and if they decide to make the call it will have implications that resonate for a very long time. And just for the record – in terms of personal preferences – yes.. I support gay marriage, but only as the much inferior, “best we can get” solution.

The government issues “licenses” for all manner of things which they really have no business regulating, and it’s frequently little more than a very thinly disguised excuse to levy another fee. For example, why do we have to purchase a hunting or fishing license? There’s almost a weak excuse for hunting licenses in terms of ensuring young hunters have received firearm safety training. But… fishing? If you are on public lands or waters, what is more fundamental than the right of people to gather their own food? The list of examples is rather lengthy.

Personally, I don’t see the government having any business being involved in the question of marriage, nor having the authority to issue a “license” for anyone to marry. And I believe the word should be excised from tax codes and every other law in the land. Of course, that’s far too much work for the government to do, so we’ll have to muddle on with what this court decides for now.

EDIT: Jazz – Thanks for pointing out that section three is the section up for review, not section 2, though I had wanted to include the text of that section for context. This has been corrected above.


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Comment pages: 1 2

Equal protection insured for Adam & Steve when they file taxes and for the congregation of the Evangelical Church of the Holy Rollers if Reverend Bob doesn’t want to marry Eve and Jane.

Bruno Strozek on December 1, 2012 at 11:19 AM

Well, you’re just a little bright spot in everybody’s day, aren’t you, sunshine?

Dunedainn on December 2, 2012 at 11:14 AM

Jazz, you are incorrect about Section 2 of DOMA being up for review. Section 2 isn’t an issue in any of the same-sex marriage cases before the Supreme Court (and, actually, I’m unaware of any cases challenging it in any lower courts either).

I note this because scare-mongering about Section 2 is a frequent tactic of social conservatives who want people to think that the DOMA challenges are about forcing states to recognize marriages. In fact, only Section 3 is at issue and Section 3 only controls the federal treatment of marriages.

Gabriel Malor on December 1, 2012 at 11:13 AM

Leave it to Gabe, a gay lawyer, to jump in to make sure the false narrative stays in place. Section 2 is not being challenged because if Section 3 falls it’s pointless.It falls too. If the Federal Government is forced to call same sex unions marriage then every state does too, that is what Equal Protection means. If a gay married couple in Mass is entitled to federal benefits and recognition then it follows that so is the couple in Montana. SCOTUS may rule that in a latter case but they will rule that way.

The Prop 8 case is a perfect example. If gays are entitled to their unions to be called marriage by federal fiat despite an amendment to the state constitution in California how could other states amendments possible stand?

There is only 2 possible outcomes to any case which reaches SCOTUS. Either marriage gets redefined everywhere by judicial fiat or it is left to the legislative process. All of these cases are about using the power of the federal government to force everyone, everywhere to recognize a same sex union as marriage.

It’s taken 30 years for us to go from a Right of Privacy saying you have a right to buy the pill, etc to saying you have a Right to make everyone else pay for it too. The gays have no intention of waiting that long.

Rocks on December 3, 2012 at 10:02 AM

Resist We Much on December 1, 2012 at 12:43 PM

Thank you for this information.

Well, it has long been the law that some states do not recognise cousin marriages performed in other states. If may be against the public policy of State A to recognise the marriage of a cousin marriage – or for that marriage a father-daughter marriage – performed in State B.

There have been challenges and usually the states have won. They survive strict scrutiny because of the state’s right to prevent genetic defects.

Resist We Much on December 1, 2012 at 12:52 PM

Do you have any names of the court cases w.r.t. these challenges?

cptacek on December 3, 2012 at 10:59 AM

There have been challenges and usually the states have won. They survive strict scrutiny because of the state’s right to say “eww! cousin marriage!”

Resist We Much on December 1, 2012 at 12:52 PM

Minor ftfy.

If genetic defects were the real concern, there would be much more scrutiny of reproduction, but no state is even close to willing to endure the firestorm that would start.

MelonCollie on December 5, 2012 at 11:50 AM

Comment pages: 1 2