Day one of supreme court hearings not promising for gay marriage proponents | Jane Schacter
There is little evidence that some justice was interested in a judgment imposing marriage equality in the country
Anyone trying to read the tea leaves of the Supreme Court arguments today on Proposition 8 case should be cautious. Blockbuster surprise of last season in the case of the defense of Obamacare is only the latest evidence of how easy it is to observers, even experienced court misunderstand the meaning of the questions of the judges for the final decision. This is the first sense that prudence is the key, but let me suggest several ways in which care can also be considered the theme of the day.
was a palpable sense of caution as to whether the court has yet to take a decision on the merits. The all-star team of Ted Olson and David Boies legal, who represents those challenging Proposition 8, swung for the fences, so to speak, and asked the court to conclude that a fundamental right to gay marriage that would apply to all U.S. states. Regarding the questions of the judges say anything of substance, suggests very little interest to go that far. In fact, my strongest impression of the arguments is that there is a strong possibility that the court may well not address the constitutional issue in this case.
The court may follow two paths to avoid the merits: one was widely reported and discussed argument earlier, the other is much more confused and not anticipated by many observers all. The so-called "status" issue of justice was asked lawyers to inform and discuss. This question asks whether that sponsored Proposition 8, where it was before voters have the right to appeal when state officials defend normally do, the Governor and the Attorney General of the State, refused to do . This question boils down to whether the vote sponsors are as citizens with strong political views on a law (which generally can not defend a law in federal court) or, on the contrary, officials may act as substitute State the purpose of the trial where the State refuses (which would enforce the law).
two positions problematic vigorously pressed by the judges. How citizens can serve as public servants when they have no obligation or responsibility to the electorate and have never been appointed to the state? On the other hand, how can initiatives authorized officials defend ballots to choose when the object of the process of the initiative is to allow voters, not elected officials, to decide the question? This last point seems to attract the sympathy of Justice Anthony Kennedy certain, which is native to California and is well versed in the central role of the initiative process in the political culture of the state.
considerable attention to foot care, was not a surprise. What was a surprise is that Justice Kennedy - usually beats the voter in court - twice raised the possibility that the court would not have granted review in the case at all. At one point, Judge Sonia Sotomayor spoke with sympathy for this position. Raised this issue for fans of the proceedings of the Supreme Court is whether the court may use a device called "foresight classify a case as given." After only four justices to grant review in the first place - probably the four most conservative in this case. Would five judges "DIG" For the moment, if the four people who voted in favor of the opinion still want to decide? Again, caution is the word of the day, and it is possible that Kennedy has no real interest - or just can not encircle the votes in favor - an option for dismissal.
Among the most liberal judges, there was another kind of plea for caution. They suggested caution about signaling states not to pursue civil union measures such as California did. Several judges expressed skepticism about the idea that theoretically could overturn Proposition 8 with limited control in California or the nine states that allow complete as marriage, the rights of same-sex couples, but do not allow the access to marriage itself. This is the path advocated by the Obama administration and was the basic theory of the Ninth Circuit's decision to drop the Proposition 8. The key idea for the advancement of this argument is that once a state grants same-sex couples marriage rights - especially parental authority and the right to adopt children - can no longer defend the prohibition of same-sex marriage based on ideas about children. It was given to these allegations. However, several judges quickly saw the irony may be asked to give states more rights to same-sex couples are in fact constitutionally vulnerable? In other words, is it conceivable that California is in conflict with the Constitution, but as a state of Mississippi, which offers same-sex couples have no right of ownership, right?
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