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The High Court’s Marriage Jitters

March 27, 2013 in Economics

By Walter Olson

Walter Olson

“Can I filter out the gay marriage tweets?” wrote one Hartford lawyer on Twitter. “Coz like it’s already legal here so I don’t care.”

I think he was kidding. But even if you live in a state like New York or Connecticut where gays can already get married, this is no time to check out of the debate — not with things really heating up at the U.S. Supreme Court.

Tuesday, at oral argument on the California Proposition 8 case, there was little sign that the court’s liberal wing was itching for any so-called “50-state solution,” a sweeping ruling decreeing gay marriage lawful nationwide on equal protection grounds.

Associate Justice Ruth Bader Ginsburg approvingly brought up the obscure 1964 case of McLaughlin vs. Florida, in which the court unanimously struck down a law against interracial cohabitation, but dodged the opportunity to overturn laws against interracial marriage. Three years later — after much intervening advancement in public opinion — it got around to doing that in the much more famous case of Loving vs. Virginia.

After Tuesday, the chances of a D.I.G. resolution — and wedding bells for gay couples in California, but ending at the state line — seemed higher.”

Instead, Associate Justices Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer concentrated on arguments that would knock out the Proposition 8 proponents’ standing to be in court on the ground that they are unelected private citizens with no particular stake in the case’s outcome. If they find a fifth justice to agree on this point, California would go back to having gay marriage — which a new KPIX-TV poll finds its citizens would welcome, by a whopping 67% to 30% — but the other 49 states wouldn’t see any change.

There’s an irony in standing having become a tool for possible liberal victories at the court.

Not long ago, conservative judges like Associate Justices Antonin Scalia and Samuel Alito were the ones known for using tough standing rules to throw out cases, while liberals were more broad-minded.

These days, standing doctrines have become more like castle drawbridges, raised or lowered depending on whether foe or friend is at the gate.

The liberals’ strategy ran into one serious difficulty Tuesday: Associate Justice Anthony Kennedy, whom both sides expect to be the swing vote, appeared sympathetic toward granting standing to the Proposition 8 defenders. That would mean, at least potentially, progressing to the merits.

So …read more
Source: OP-EDS

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