Supreme Court May Punt on Gay Marriage

by John M. Curtis
(310) 204-8700

Copyright March 27 2013
All Rights Reserved.                                         

        All the hubbub about the Supreme Court finally ruling on the constitutionality of California’s 2008 Defense of Marriage ballot initiative known Prop. 8 might be tempest in a teapot if justices rule they find no basis for the suit.  Justices led by 76-year-old Reagan-appointed swing-voting Anthony Kennedy question whether the plaintiffs—proponents of Prop 8—have sufficient grounds to show damages.  When former Calif. Gov. Arnold Schwarzenegger and his successor Gov. Jerry Brown refused to defend the action in the High Court, it raised the issue of whether or not the lawsuit has any legal “standing.”  Tossing out the case would leave the ultimate constitutional issues unsettled, other that accepting the District Court or Circuit Court’s ban on the controversial ballot initiative defining marriage as binding legal relationship between a consenting man and a woman.

             Opponents to Prop 8 hope the High Court would decide on whether or not issues related to sexual orientation should be litigated under the Bill of Rights, preventing racial discrimination under the Constitution.  Homosexuals and lesbians hope the Supreme Court rules definitively on the same legal protections on the 14the Amendment’s Due Process and Equal Protection clauses that prompted the Massachusetts Supreme Judicial Court to rule in 2004 that domestic partnerships violated Brown v. Board of Education, a landmark civil rights ruling banning states from creating “separate-but-equal” schools for underprivileged racial minorities.  Kennedy, who’s authored two major rulings supporting gay rights, wondered whether the 40,000 offspring of gay couples were harmed by their parents’ inability to marry. “They want their parents to have full recognition and full status,” said Kennedy.

             When justices struggled with who’s harmed by the ban on same-sex marriage, Kennedy answered his own question when he concluded the children of gay couples.  If the Supreme Courts tosses out the plaintiff’s lawsuit, it delays the inevitable, eventually ruling on the constitutionality of gay marriage.  “The voice of these children is important to this case,” Kennedy said, finding the legal basis to the suit.  Prop 8 defines marriage as legal relationship between a man and a woman, setting up discrimination under the 14th Amendment.  Whatever the opposing arguments, Kennedy knows that Prop 8 proponents, largely the Mormon and Christian churches, aren’t harmed when gay couples seek consummate relationships through marriage.  Spending roughly $40 million to pass Prop 8 shows the extremes church groups go to protect the Bible or Book of Mormon before the Supreme Court.

             If the Court really takes the issue seriously, it should rule on whether or not California’s ballot initiative process should be vetted before measures appear on Election Day.  Financial backers of Prop 8, including the Salt Lake City-based Mormon Church and Colorado Springs-based “Focus on the Family” have any claim against the state of California for supporting an initiative eventually invalidated because it violates the state and federal constitutions.  No one expects the High Court to rule on that.  But the Supreme Court does face a precarious situation in ruling on whether or not Church-based institutions can cross the Separation Clause of an influence matters of public policy, namely, whether the state issues marriage licenses to same-sex couples.  Regardless of how much Mormon or Christian churches spent on preventing gay marriage, the court must rule on its legality.

             Kennedy recognized the fact that plaintiffs asked the Court to make new legal precedent.  “You’re asking for us to go into uncharted waters,” said Kennedy, questioning whether Prop 8 backers had legal grounds to bring suit without proof of damages.  Saying the church or bible sustains damages in same-sex marriage offers no proof of harm.  Spending $40 million to ban same-sex marriage doesn’t automatically mean the proponents lost precious capital.  Because the federal or state courts continue to pass judgment on same-sex marriage, it doesn’t mean there’s a substantive legal case.  Kennedy disagreed that there’s any parallel or legal precedent with Loving v. Virginia, where the High Court ruled against bans on interracial marriage.  If the Supreme Court rules on Prop 8, it should decide on whether the High Court can rule on unconstitutional ballot initiatives.

             Legal questions surrounding Prop 8 should focus on whether or not there’s sufficient case law to apply sexual orientation issues to existing protections under the Bill of Rights. If the Massachusetts Supreme Judicial Court was right in banning domestic partnerships because it violated Brown v. Board of Education when they legalized gay marriage in 2004, then the U.S. Supreme Court should decide once-and-for-all whether sexual orientation is a legitimate civil right.  If the High Court says yes, then it follows that all states, regardless of local preferences, can’t discriminate against same-sex marriage.  Hinting that the Court might pass the buck to San Francisco’s 9th Circuit Court of Appeals, Justice Kennedy tried to divert attention away from the inevitable task of determining for posterity whether sexual orientation has become a legitimate civil right in today’s society.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.