By Nick Davis
The United States Supreme Court heard oral arguments last week with regards to the constitutionality of the federal Defense of Marriage Act (DOMA) and California’s Proposition 8. It seems only fitting that the Court would take up both cases at the same time. The part in question with DOMA is simply whether or not same-sex couples deserve the same tax benefits that heterosexual couples enjoy. Proposition 8 actually deals with the question of whether or not individual states have the right to deny marriage licenses to same-sex couples.
No matter which side the Supreme Court falls on, its inevitable that the cultural tide surrounding the acceptance of gays and lesbians will continue to grow. Just like in the 1960s and SCOTUS decisions before that, civil rights supporters were not deterred by legal setbacks, and its doubtful LGBT supporters will feel that sentiment either. Once we get past the usual comparisons to the civil rights era, it’s easy to see that the real meat of debate lies with Proposition 8 rather than DOMA.
This might be one of the few instances where money takes a backseat in any debate. Any culturally aware observer can see that the gay marriage debate is about equality and holding up societal constructs than it is about the tax breaks. The money is just the icing on the cake for LGBT supporters. That is why Proposition 8 is a much bigger deal to both sides. Proposition 8 deals with the fundamental question of whether homosexuals have the right to marry their partner. That principle applies to all 50 states, not just those which allow heterosexual and homosexual marriages.
So, since marriage contracts are currently left up to the states, what is the likelihood that it will stay that way? Excluding any unforeseen outcomes about standing issues, the Court will likely have to determine whether the 10th or 14th amendment takes control here. The former states that any power not given to the federal government stays with the states and the latter states that all people should be given equal treatment under the law. A majority opinion based on the 10th amendment would preserve the status quo while an argument based on the 14th amendment would deliver a landmark decision.
Not surprisingly, it seems that this may be another decision split along ideology. Justices Roberts, Thomas, Alito, and Scalia seem to be in favor of federalism or states’ rights while Justices Sotomayor, Kagan, Ginsburg, and Breyer seem to be willing to decide based on equal protection. As always, that leaves Justice Anthony Kennedy as the swing vote.
Throughout both days of arguments, the Justices and lawyers debated whether the state had a compelling interest in denying same-sex couples the right to marry. Two of the main points revolved around promoting procreation of new life as well as the effects of same-sex parenting. This second point is where Kennedy expressed some concern. “[The] sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case don’t you think?”
I’m no law expert, but I would be surprised if the Court didn’t strike down Proposition 8 based on the equal protection argument. The American Academy of Pediatrics has answered Kennedy’s questions about the lack of evidence regarding the effects of same-sex parents on children. They endorsed gay marriage on March 21st stating that the AAP “supports pediatricians advocating for public policies that help all children and their parents, regardless of sexual orientation, build and maintain strong, stable, and healthy families that are able to meet the needs of their children.”
Just like in Loving vs. Virginia, the case that struck down bans on interracial marriage, the Court decided that the 14th amendment superseded the 10th because the law had no compelling state interest other than to promote a cultural standard.
On Tuesday, we here at Votifi asked you whether you thought the Supreme Court has the power to influence culture, or whether culture influences the Supreme Court. Of all respondents, 67% said that culture influences the Court while 24% said that it influences culture. What’s interesting is that most of the 67% tended to lean left politically while the 24% happened to lean right. To me, this is not surprising at all. Conservatives have always referred to the Court as ‘activists,’ and here it would be no different.