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Everything You Need to Know About the Marriage Equality Cases At The Supreme Court

And where the surging support for marriage equality will lead.
 
 
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Beginning this morning, the Supreme Court will hear two cases that could recognize the right of everyone, straight or gay, to marry the person they love. The first concerns California’s anti-gay Proposition 8, and could potentially  extend the right to marry to same-sex couples in all fifty states. The second challenges the federal Defense of Marriage Act (DOMA), and could end the federal government’s practice of denying equal benefits to couples who are legally married under state law. Here is everything you need to know to understand these cases:

How The Court Could Rule

– A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states. It is fairly likely, however, that at least one member of the majority will be  too cautious to require Alabama to follow the Constitution, even if they are prepared to order California to do so. If the justices punt on the Alabama question, the important question is whether they hold that anti-gay laws are subject to “ heightened scrutiny,” a skeptical kind of constitutional analysis that will make it very difficult for anti-gay discrimination to withstand court review in the future.

— A One-Off: The Ninth Circuit proposed a way to strike down Prop 8 while  leaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court). The logic of the ruling was thus confined to California. Similarly, two of the Court’s  most important gay rights opinions relied on very narrow reasoning that advanced equality only incrementally. It is possible the justices will repeat this performance.

– Jurisdictional Dodges: In both cases, the Court could potentially rule that it  lacks jurisdiction to hear the case, a decision that would cast a cloud of uncertainty over the rights of gay couples.

– A Stealth Attack: Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process.

– A Loss: Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a  severely conservative justice. Equality could lose.

What To Expect From The Justices

– The Democratic Appointees: It would be very surprising if any of the Court’s four Democrats vote to uphold discrimination. While some commentators have noted Justice Ginsburg’s  critical statements aboutRoe v. Wade — “It’s not that the judgment was wrong, but it moved too far, too fast” — this statement suggests Ginsburg might take an incremental approach, not that she will vote to uphold discrimination. Chance of pro-equality vote: more than 90 percent.

– Justice Kennedy: Kennedy is the author of two narrowly reasoned, but  very important cases upholding gay rights. His record on gay rights is not perfect, however. Kennedy cast the key vote holding that the Boy Scouts have a  constitutional right to engage in anti-gay discrimination, and he’s behaved less and less like a moderate swing vote and  more and more like a hardline conservative in recent years. His vote for equality is likely, but not certain, and is more likely than not to rest on very narrow reasoning. Chance of pro-equality vote: 60-70 percent.

– Justice Thomas: Thomas is the Court’s most conservative member, but he once called Texas’ “sodomy” ban an  “uncommonly silly” law, and he cares a great deal shrinking federal power until it is small enough to be drowned in a bathtub. Indeed, Thomas believes  federal child labor laws and the nationwide ban on whites-only lunch counters are unconstitutional on states’ rights grounds. For this reason, it is possible he will be attracted to the claim that  DOMA violates states’ rights. There’s no chance he’ll vote to strike Prop 8, however. Chance of pro-equality vote: 20 percent on DOMA, 0 percent on Prop 8.

 
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