WASHINGTON, March 26, 2013 — The tide of history surges forward this week as the issue of gay rights comes before the U.S. Supreme Court. The question is whether the Court will try to stem that tide or whether Chief Justice John Roberts will act boldly, doing an Earl Warren, and make history.
Chief Justice Earl Warren led what is now called the Warren Court through some of the most important, landmark cases in modern history, from protecting the right of privacy to “one man, one vote” to banning segregation in the public schools. Warren was a Republican, even being the 1948 GOP’s vice-presidential nominee, and was thought to be a conservative when President Eisenhower appointed him.
But his court’s rulings were often seen as liberal, although today they are seen moderate decisions and part of the fabric of our lives. Like Justice John Marshall, Warren’s tenure as Chief Justice is seen as a high point of the Supreme Court.
Now comes Justice Roberts’ chance for his place in history. He has shown a bit of gumption as he did in upholding the Affordable Care Act (aka Obamacare).
Some wonder whether when he broke so dramatically with fellow conservatives on the bench, Antonin Scalia, Samuel Alito and Clarence Thomas, if Roberts were beginning to ponder his legacy.
Would Justice Roberts leave behind a history of No or would he affirm the evolving dynamics of the Constitution? Or perhaps he had second thoughts about the Citizens United decision and the trajectory of a Scalia-dominated Court.
Now comes a chance to be the champion of equal rights, this time gay rights. And both same-sex marriage cases coming up this week are civil rights cases as defined by the equal protection clause of the 14th Amendment. The Court won’t make a decision this week, hearing only arguments from both sides on the two questions involving same-sex marriage
Up first on Tuesday will be 60 minutes of oral arguments over a challenge to California’s Proposition 8, a 2008 state constitutional amendment that prohibits same sex marriages. Opponents challenged the law, the federal appeals court ruled it to be unconstitutional and supporters of Prop 8 have asked the Supreme Court to review that ruling.
Then on Wednesday morning, there will be 110 minutes of oral arguments in United States v. Windsor, which challenges the Defense of Marriage Act (DOMA), a 1996 law that says marriage is between one man and one woman and prohibits federal benefits going to same-sex married couples.
Next comes the deliberating, the decision and the written opinions. So how will Justice Roberts lead the Court? The country has already moved ahead of the states and those politicians stuck in outdated prohibitions on gay rights. Polls from Fox News to the Washington Post to every pollster in between show that the majority of Americans now support gay marriage.
And it is true, that the Supreme Court is not subject to polls, but it is supposed to be the defender of civil rights and the discrimination against gay couples to wed or to deny them federal benefits is clearly a civil rights issue. Some say let the states decide for themselves whether they will allow gay marriages. Slowly but surely it will come, they argue. Look, nine states already allow same-sex marriages, meaning, however, 41 haven’t.
Would that argument have worked for African Americans, who first had to endure slavery and then a century of civil rights abuse? Or for inter-racial couples who were forbidden by law to marry? Just wait, folks, your state will get around to your rights one of these days.
Justice Roberts and his court have several options, depending on how narrow they make their focus.
1. They can uphold Prop 8, and states then would remain free to ban same-sex marriages if they chose to do so.
2. Strike down Prop 8, by making one of three decisions:
a) Rule that California is not free to provide same-sex couples with the benefits of marriage via civil unions while denying them the designation of marriage. This would affect eight civil-union states only.
b) Or the Justices could rule that California was not entitled to withdraw the right to same-sex marriage since it had been established by the state’s own Supreme Court. This would then affect only California.
c) Or the Court could go bold, saying that Prop 8 and all bans on same-sex marriages violate the Constitution and all states with a constitutional ban would then be affected, which is most of them.
3. Decide that the supporters of Prop 8 lack standing to appeal. Such an decision would affecting only California.
1. The Court could decide that DOMA violates the equal protection clause of the Constitution and therefore the law that Congress passed in1996 is unconstitutional. This would affect nine states and the District of Columbia.
2. Or the Court could rule that the law is constitutional.
3. Or the Court could throw its collective hands in the air and say it is powerless to decide the case. Most Court scholars doubt this will happen.
So which direction will Justice Roberts lead the Court? Is he ready to be bold and resolute in the face of withering scorn by Justice Scalia? Is the Court’s conservatism becoming too reactionary even for him? Is the Constitution static or a living document? Will the Chief Justice lead or follow?
Listen to the cross examination of the opposing lawyers in today’s case, and you will find clues to how Roberts is thinking and which way he is leaning and thus the direction of the Roberts Court.
To contact Catherine Poe, see above. Her work appears in Ad Lib at the Communities @ WashingtonTimes.com. She can also be heard on Democrats for America’s Future. She is also a contributor to broadcast, print and online media.
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