It is only a matter of time before the U.S. Supreme Court, finally upon Writ of Certiorari to hear oral arguments for the legalization of same-sex marriage throughout the United States. Despite passage of President Clinton’s Defense of Marriage Act (DOMA) through the Congress which protects “traditional” marriage while recognizing civil unions for same sex partners, it is still less than having a real ‘marriage’ in the usual meaning of the word with all its social implications and legal rights. This is probably one of the most important decisions that the Justices will make in a generation and it will leave its mark upon the Court for years to come.
Several states have already legalized same-sex marriage through the process of direct democracy where a majority of citizens voted in favor of it, regardless of how their state constitutions define marriage or what the legislatures previously passed into law, as far as banning legalizing same-sex marriages as well as performing marriage ceremonies that the state recognizes as valid. The first thing the Court will probably do is declare DOMA as “unconstitutional” based on whether Congress and the Executive branch of government can pass laws that may violate the U.S. Constitution.
Article 4, Section 1(a) says: “Full faith and Credit shall be given in each state to the public Acts, Records, and judicial proceedings of every other state.”
Article 4, Section 2 says: “The citizens of each state shall be entitled to the Privileges and Immunities of citizens in the several states.”
Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Fourteenth Amendment, Section 1 (b) says: “No state shall make or enforce any law which shall abridge the Privileges and Immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Since marriage is a contract with the state it is unlikely that in this day and time that there can still continue to exist discrimination like the pernicious ‘miscegenation laws’ which did not allow race-based relationships, particularly when it came to recognizing a marriage. It is not a matter for the Supreme Court to define or redefine “marriage” but rather to affirm and decree that each state must follow the Constitution and not deny a same-sex couple the right and privilege to marriage, and to enjoy all the same protections and benefits “equally” (both state and federal jurisdictions) under the laws as any other couple. The thing the many court watchers want to know is how will each justice decide the matter? There are 3 Jewish Justices (Breyer, Kagan, and Ginsberg) and 6 Roman Catholics (Scalia, Thomas, Kennedy, Alito, Sotomayer, and Roberts).
Justice Thomas votes the same as Scalia, and Scalia is a strict constructionist, namely, if the Constitution doesn’t specifically state a thing then it isn’t constitutional. Not to mention there are 6 Justices appointed by Conservative presidents and 3 by Liberal ones. It is almost certain that the “nay” votes are Scalia, Thomas, and Alito. Kagan, Sotomayer, and Breyer are the “yea” votes, and although it would be almost a slam dunk to include Ginsberg as the fourth vote, but her age and failing health might affect her judicial perspective. Besides all that, she has her own independent philosophy and some public comments that she has made in the past has run counter to the expectations of some liberals. On the other side is Justice Kennedy who has been known as a possible “swing vote” based on his more moderate positions. The one thing, though, is that I am sure Justice Roberts doesn’t want to be the deciding vote as he was on ObamaCare.
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February 8, 2013