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A Tactful Move Toward Marriage Equality: How the Supreme Court Will Give Both Sides a Victory in the Gay Marriage Cases

April 1, 2013 in Economics

By Trevor Burrus

Trevor Burrus

The dust has now settled after the Supreme Court heard oral arguments on the issue of gay marriage. As we’ve seen many times in the last few years, all eyes were once again on the Court to decide a major issue of national importance. Throngs of people once again gathered outside the Court, just a little more colorfully this time.

Based on oral arguments, it seems the Court will likely avoid deciding that every state must allow gay marriage while simultaneously overturning the federal government’s Defense of Marriage Act (DOMA). Everyone will get a little something, but, most importantly, the struggle for gay rights has been brought forcefully to the public eye. With or without the Court’s help, the right to gay marriage is moving in the right direction.

Either through the Court or through the democratic process, gay people will soon have the freedom to spend their lives with someone they love.”

The issue of gay marriage arrived at the Court in two cases. Hollingsworth v. Perry concerns California’s Proposition 8, a ballot measure passed in 2008 to overturn the California Supreme Court’s ruling that marriage discrimination is not permitted by the California Constitution. United States v. Windsor is a challenge to DOMA, signed into law by President Clinton in 1996 and also prompted by a 1993 Supreme Court of Hawaii decision permitting gay marriage.

There is an odd interaction between these two cases, an interaction of which the Court is well aware. On one hand, there is the argument that laws such as DOMA must be struck down because the federal government has no business being involved in decisions traditionally left to the states, which certainly includes the definition of marriage. On the other hand, the Proposition 8 challenge is based on the idea that states are not allowed to discriminate in their definitions of marriage.

Finding a way out of this thicket will take some creative judging, and the Court has many options open to it. The least likely outcome is that the Court will strike down all state statutes prohibiting same-sex marriage. Although this may be the correct decision legally, and I believe it is, it may not be the correct decision prudentially. Because the Supreme Court lacks any method of enforcing its own rulings, its legitimacy is deeply intertwined with how much respect it gets as an institution. The deep, national divide produced …read more
Source: OP-EDS

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