Today, the Supreme Court is going to hear arguments in cases concerning the constitutionality of California’s Proposition 8 and federal government’s Defense of Marriage Act. Both laws outlaw same sex marriage and define marriage as one man and one woman.
What I’m hoping for out of the Supreme Court is first and foremost for DOMA to be struck down as unconstitutional. There is no authority for the Federal government to define marriage under the Constitution.
As for Proposition 8, it too be should be struck down, but how and why it should be struck down is key. This New York Times graph shows the possible scenarios that can happen with both cases. The two scenarios I lean toward are using the Equal Protection Clause to strike down the “separate but equal” civil unions/domestic partnerships and make these states that have utilized this “solution” to actually take a stand. President Obama agrees with me on this.
I wouldn’t also mind the decision on this issue by the Ninth Circuit to be upheld. They essentially ruled that because the California Supreme Court legalized gay marriage under the California constitution, that Proposition 8 was enacted in a mean spirited fashion targeting gays and thereby denying them equal protection and due process of the law. This would essentially only affect California.
What would be overreaching is striking down marriage laws in every other state in the Union. This would be a stretch of the Equal Protection Argument because many of these laws were not just targeting gays, but also polygamists and many others. While there maybe a public policy argument for revising marriage laws, this is a decision best left to legislatures and the voters of each state and not to judicial dictat. Yes, the result is important, but even more important is the process of achieving that result. There is more legitimacy to using the democratic and legislative process to achieve the goal of marriage equality than using 5 to 9 unelected bureaucrats to hand down a decision that was deliberated in secret. This is tantamount to “rule by experts” and is very undemocratic.
Finally, solving this through the democratic process will solve many of the controversial side issues that have arisen with this issue such as religious liberty protections and other conscience protections for those churches and businesses and others who oppose same sex marriage. The democratic process is often long and slow, but gradual change makes it more likely the change won’t be reversed and will become more accepted in time.