Attitudes towards same sex marriage are changing across America many polls suggest. Beginning today, the Supreme Court will be presented cases to decide if America will stay true to its word that “All Men are created Equal”.
This morning, the Supreme Court will hear a case regarding
California’s ban on gay marriage. Tomorrow, they will also hear a case regarding the Federal governments knee jerk reaction pandering to Evangelical Conservatives “Defense of Marriage Act” (DOMA).
Forbes today published the following Supreme Court Gay Marriage Arguments: Questions To Watch For :
•Standing: Do the plaintiffs challenging California’s Prop. 8 and DOMA even have the legal right to bring their suits? The justices will likely probe who was damaged and how, under the Constitution’s requirement that there be a “case or controversy” in order for courts to have jurisdiction in the first place. The court has come down hard lately on environmentalists, for example, who try to use litigation to block regulations they disagree with. In the DOMA case, the Obama administration is in the unusual position of appealing a lower-court decision that declared the law unconstitutional, a position the administration agrees with. On the other side are Congressional Republicans who are trying to force the administration to enforce the law, but may not have a legally recognizable claim in the matter.
•Equal protection: Watch Justice Anthony Kennedy on this one. He wrote the majority opinion in Romer v. Evans striking down an amendment to the Colorado Constitution that banned any laws designed to prevent discrimination on the basis of sexual identity. In that case, Kennedy said “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” The question is whether he thinks banning the use of the word “marriage” on a certificate rises to the same level of discrimination.
•Narrow or broad? The first court to hear the challenge to Prop. 8 ruled it unconstitutional, but the Ninth Circuit took a narrower approach tailored by legal theorists including Eskridge to survive Supreme Court scrutiny. In essence, the Ninth said California voters couldn’t take away from gay couples rights they had already enjoyed in San Francisco and several other cities that issued legal marriage certificates until Prop. 8 passed. Watch for questions seeking to draw out the lawyers on whether marriage is a base constitutional right, like voting or entering into contracts, or whether it was a California right unfairly taken from a minority by the voters.
•Interstate commerce: OK, this one’s an outlier. But the patchwork system of civil unions, partnerships and fully-fledged marriages across the country raise serious headaches not just for same-sex couples but their employers. The employment-law firm of Seyfarth Shaw joined opponents of DOMA on that basis, saying the law “forces an employer to place its lawfully married employees into two categories and requires that they create and administer a variety of dual systems for these employees. This creates regulatory, tax, and morale problems for employers, and forces them to differentiate in distributing benefits to lawfully married couples.”