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SCOTUS Did/Didn’t Open Door To ‘Gay Marriage’

From Reuters:

Analysis: Supreme Court in no rush to grant national gay-marriage right

By Joan Biskupic | June 26, 2013

WASHINGTON (Reuters) – When the U.S. Supreme Court declined on Wednesday to rule on whether gay men and lesbians have a fundamental right to marry, it delivered an implicit message to those seeking such a right: Don’t hurry back.

All nine of the justices, with their votes and rhetoric in a pair of cases, signaled they either would never be willing, or are not ready yet, to cut off the unfolding state-by-state legislative debate on gay marriage.

Whom to believe, Reuters or Justice Antonin Scalia? (See below.)

The five-justice alliance that came together in one case to extend federal benefits to same-sex couples [DOMA] splintered in the other case to avoid facing a larger test on the constitutional right [Prop 8]…

They agreed to extend federal benefits, but they are not acknowledging any fundamental rights?

The dual actions revealed that even the liberal justices want to wait a little longer – perhaps for more state action. Thirteen of the 50 states allow gay marriage. More than 30 states do not recognize such unions. In the past, justices have demonstrated that they do not want to be too far out ahead of the country…

Sure they don’t.

Harvard law professor Richard Fallon said the shifting divisions showed that the five-justice coalition favoring gay rights was willing to go only so far at this point.

"Although a majority thought it was important to resolve the DOMA issue," he said, "a majority did not believe it was not similarly desirable to resolve the larger equal protection issue" posed by laws against gay marriage…

Lawyer Theodore Boutrous, on the legal team that fought Proposition 8 and seeks a national right to gay marriage, said the group was looking for a test case in one of the nearly 30 states that bans gay marriage. He said that might take a few years and predicted the court would be readier to change the national landscape the next time around.

Said Boutrous: "The court is taking it one step at a time."

Meanwhile, we have a contrary view from Justice Scalia, via The Hill:

Scalia: ‘No one should be fooled’

By Sam Baker | June 26, 2013

Supreme Court Justice Antonin Scalia blasted the ruling on the Defense of Marriage Act as opening the door to a federal right to same-sex marriage.

“As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe,” Scalia said on Wednesday.

In a 5-4 decision, the court struck down a federal law defining marriage as a union between a man and a woman. The court did not rule on state laws that define marriage, and it said its decision was confined to federal restrictions.

But Scalia said the tenor of the decision shows that the court will likely strike down state laws as well.

“I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with,” Scalia wrote in a stinging dissent…

Justice Anthony Kennedy, who wrote the majority opinion, did not say that the Constitution guarantees a right to same-sex marriage. The court avoided ruling at all in a separate case that sought a broad ruling on constitutional principles.

Instead, Kennedy said the DOMA ruling was a correction of federal overreach that would leave the issue of marriage to the states.

That is, the Court really did not decide on the constitutionality of DOMA. They just said it was an over-reach on the part of the federal government. A matter of state versus federal power.

Scalia mocked Kennedy’s decision for employing civil-rights rhetoric while technically only ruling on a question of state versus federal power.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” Scalia said…

Scalia said ascribing discriminatory motives to DOMA was an effort to “maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob.”

Kennedy’s rhetoric was also a sign that the Supreme Court will eventually strike down state laws limiting marriage to men and women, Scalia said.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote…

That is, the Court is opening the door to ruling in favor of a national gay marriage right. It’s just a matter of time. After all, how can the Supreme Court align itself with the ‘enemies of human decency’?

But maybe the liberal Justices realized it would be better to wait until after the 2014 midterms to go that far. Meanwhile, their rulings should be enough to keep the gay donations flowing to the DNC. Which, after all, is mostly what is motivating this push.

This article was posted by Steve on Thursday, June 27th, 2013. Comments are currently closed.

2 Responses to “SCOTUS Did/Didn’t Open Door To ‘Gay Marriage’”

  1. GetBackJack says:

    Google and Read Scalia’s 12 point kidney punch to those other black robes

  2. canary says:

    Obama was for it since 1996. And bigamy will be next because Obama is very comfortable and
    proud of his anything goes roots.

    ABC exclusive – Obama: I Think Same Sex Couples Should Be Able to Get Married


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