Friday, March 29, 2013
Why the Supreme Court May Want to Find a Way to Punt on Prop 8
The behind the scenes wrangling at the Supreme Court in the wake of this weeks arguments in Hollingsworth v. Perry promises to be interesting. This is the California Prop. 8 case where the court is being asked to decide whether the equal protection clause of the 14th Amendment of the U.S. Constitution prohibits the State of California from defining marriage as the union between a man and a woman.
The back and forth between the judges should be very interesting behind the scenes because a) the equal protection argument is very strong, b) the argument offered against (regulating procreation) is very weak, and c) the real argument against (most states prefer it that way) is not a legitimate constitutional argument.
The fear to let gays marry is, of course, irrational. But it's there. At current trends, in another 20 years most states will have legalized marriage and there will be a strong majority in favor of gay marriage (new young voters are strongly in favor of it). At present, however, the map of states prohibiting same sex marriage is overwhelmingly red; much more so, say, than a similar map of states requiring segregated education in 1954. Brown v. Bd of Education, striking down de jure segregation in education was a unanimous decision. It's safe to assume that none of those justices personally believed we should have de jure segregation in education. By contrast, there is strong support in the country for keeping marriage between a man and a woman, and four of the justices personally share that sentiment.
In light of the continued national split, still favoring "let's keep marriage between a man and woman," it will be much harder for five justices to shove gay marriage down the throat of the states where this has less than 20% support, down the throat of the nation as a whole (where a [slight?] majority still favors "traditional marriage"), and down the throat of the four dissenting justices. By comparison, the decision in Brown v. Board of Ed to unanimously strike down segregated education in 1954 was a cakewalk.
That's why the justices in the Prop 8 case may want to look for a way to let this "perc" a little while longer and say .... "never mind."