As I write this, the Supreme Court of the United States (SCOTUS) is about to hear arguments on whether or not states have the ability to define marriage in such a way as to deny same sex couples the fundamental right of marriage. SCOTUS will also hear arguments as whether or not states have the ability to deny recognition of same sex marriages performed in states where it is legal.
Trying to read the tea leaves, especially before oral arguments, is a fool's errand, but I have a feeling that in a 5 to 4 decision to come out this June, SCOTUS will finally bring marriage equality to all 50 states and the various territories/protectorates. I think Justice Kennedy will write the majority opinion reaffirming the decision in Loving v Virginia which held that marriage is a "fundamental right" and that government has no business discriminating against same sex couples.
I am cautiously optimistic that marriage equality will become the law of the land.
As reported by many news organizations, at least four Justices of the United States Supreme Court (SCOTUS) have agreed to hear four cases coming out of the 6th US Circuit Court of Appeals in regards to marriage equality. After the October 6th, 2014 decision by SCOTUS to deny "cert" to challenges to rulings coming from the 4th, 7th and 10th US Circuit Courts of appeals and the despicable ruling by the 6th Circuit, this day could not come soon enough.
The two questions before SCOTUS will be whether or not same sex marriage bans in 31 states and their denial of recognition of same sex marriages performed in other states violates the 14th Amendment. Numerous federal courts, including four appellate courts, along with several state courts have ruled that yes, these bans violate the 14th Amendment. The 6th Circuit is the only appellate court to have ruled otherwise, going so far as to claim that the federal courts have no business overturning "voter approved" bans on marriage equality.
I am, of course, biased and believe that these bans do violate the 14th Amendment as well as the 9th Amendment. Hell, SCOTUS has already ruled that marriage is a "fundamental right" in Loving v. Virginia (which also, by the way made marriage a "federal issue").
My hope is that the votes are there for marriage equality to become the law of the land in all 50 states and the various territories come June of this year. My fingers are crossed.
As I write this, the United States Supreme Courts is about to begin oral arguments in Hollingsworth v. Perry, better known as the California Prop 8 case. It is a scary proposition to have this particular Court with its conservative majority that seems hellbent on reversing the progress of civil rights in the past century to hear this case. No matter how oral arguments go today (an audio recording will be available later today), we probably won't know until June what the outcome will be when the decision is handed down.
Of course, we will all be trying to read the tea leaves of what is said in oral argument by the Justices via their questions (almost statements). And of course, all eyes and ears will be on Justice Kennedy, the author of Lawrence v. Texas as he is expected to be the swing vote. Will the Court follow in the steps of Loving v. Virginia by reaffirming the fundamental right of marriage and thus striking down gay marriage bans across the nation? Or will the Court deal a staggering blow to the marriage equality movement by declaring that Proposition 8 is constitutional and there isn't a fundamental right for same sex couples to get married?
Or will the Court punt? In my honest opinion, I think they will punt (especially if Chief Justice Roberts is the author) and they will do so in one of three ways:
They could declare that the Plaintiffs (the proponents of Proposition 8) do not have standing which would mean that the Ninth Circuit Courts narrow decision striking down Proposition 8 relying on Romer v. Evans.
They could be California specific and ruling that Proposition 8 is unconstitutional based on Romer v. Evans while holding that the proponents of Proposition 8 do have standing.
They could find that domestic partnerships (of which California has such a law) violates the 14th Amendment and thus those 9 states with domestic partnerships for same sex must allow for same sex marriage.
As I said, it is anybody's guess as to how the Supreme Court will rule, even if my friend Justin is pretty sure the decision will be sweeping and reaffirming Loving v. Virginia. We all be on pins and needles until June and that fateful day. But honestly, I never thought I would see this in my lifetime.
A hat tip to SCOTUSblog for their incredible coverage of the marriage equality cases and also a hats off to Chris Hays who, in his final show as the host of MSNBC's UP, had a full hour discussion on the marriage equality cases before the Court featuring Dan Savage. I am including those videos below.
*UPDATE* Tom Goldstein, over at SCOTUSblog, doesn't have a lot of good things to say about oral arguments today. Kind of scary.
*2ND UPDATE* The audio recording of today's arguments have been released and I am including them here.
