Posted by AzBlueMeanie:
The U.S. Supreme Court is preparing to wade into historic and controversial territory. The Court is considering 10 petitions for review today regarding same-sex marriage, including the constitutionality of the Defense of Marriage Act and California’s Proposition 8. The orders granting or denying certiorari are likely to be announced on Monday.
Tim Goldstein at SCOTUSblog has posted this wonderfully written commentary. History:
At their Conference today, the Justices will consider petitions
raising federal constitutional issues related to same-sex marriage.
These are the most significant cases these nine Justices have ever
considered, and probably that they will ever decide.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore
and Obamacare were relative pipsqueaks. The government’s assertion of
the power to prohibit a loving couple to marry, or to refuse to
recognize such a marriage, is profound. So is the opposite claim that
five Justices can read the federal Constitution to strip the people of
the power to enact the laws governing such a foundational social
institution.
The cases present a profound test of the Justices’ judgment. The
plaintiffs’ claims are rooted in the fact that these laws rest on an
irrational and invidious hatred, enshrined in law. On the other hand,
that describes some moral judgments. The Constitution does not forbid
every inequality, and the people must correct some injustices (even some
grave ones) themselves, legislatively.
The striking feature of these cases – not present in any others I
have ever seen – is that that they would have been decided by the
Justices’ predecessors one way and would be decided by the Justices’
successors another way.
The painful but sometimes unspoken truth is that seminal Supreme
Court rulings sometimes reflect the era in which they were decided. In
2012, it is ridiculous to believe that the government could ban
inter-racial marriage. But that was the law in much of the country for
most of its history. In fact, it was a serious argument, and there were
a number of similar laws on the books, when the Court declared them
unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.
Here, the argument that the Framers of the Constitution would have
recognized constitutional rights related to same-sex marriage is silly. In fact, the claims of same-sex marriage advocates were hopeless in
this Court – both because of its conservativism but also because of
social attitudes – as recently as five years ago.
But the arc of history tilts towards equality and justice, and our
society is rapidly but unevenly coming to the judgment that same-sex
marriage is just and right. The claims presented by this case would
just as inevitably prevail (probably by a wide margin) in the Supreme
Court twenty years from now. By then, it will be broadly (if not
uniformly) accepted that discrimination against homosexuals related to
marriage is invidious and irrational. Our attitudes are shifting that
fast.
Our country and societies around the world will read the Justices’
decision(s) not principally as a legal document but instead as a
statement by a wise body about whether same-sex marriages are morally
right or wrong. The issues are that profound and fraught; they in a
sense seem to transcend “law.” Given the inevitability of same-sex
marriage, if the Court rules against those claiming a right to have such
unions recognized, it will later be judged to be “on the wrong side of
history.”
For a detailed analysis of the cases before the court, see Lyle Denniston of SCOTUSblog:
Same-sex marriage I: The constitutional standard
Same-sex marriage II: The arguments for
Same-sex marriage III: The arguments against
Same-sex marriage IV: The Court’s options
Amy Howe at SCOTUSblog explains it In Plain English.
