Diane Robertson
It’s June! In June many minds turn toward flowers, sunshine, swimming pools, and summer vacation. Others think of marriage. June is the most popular month for couples to tie the knot. This June is an especially important month for marriage. Before the end of June the nine United States Supreme Court Justices will deliver a ruling on marriage.
The Supreme Court Justices either enjoy drama or like to take time on deciding some of the tougher more divisive cases. No matter, the Supreme Court usually saves their most controversial decisions for the final days of the spring term. In 2012 it was health care. In 2013 it is marriage.
In one marriage case, the Justices will decide whether it is unconstitutional for the federal government to restrict marriage to one man and one woman (DOMA). In a second case, they’ll rule whether the people of a state can use a voter initiative– a process of a participatory democracy that empowers the people to propose legislation and to enact or reject the laws at the polls independent of the legislature and judiciary branches—to undo current marriage laws (Proposition 8).
The public labels each of the nine justices as either liberal or conservative according to how they typically vote on cases. In 2013, the nine justices are fairly split. Chief Justice Roberts, and Justices Clarence Thomas, Antonin Scalia, and Samuel Anthony Alito, Jr. lean conservative. Justices Ruth Bader Ginsburg, Stephen G Beyer, Sonia Sotomayor, and Elena Kagan lean liberal. Justice Anthony Kennedy is considered the swing vote.
The two justices to watch on the marriage decision are Justice Kennedy and Chief Justice Roberts.
Until last year’s ruling in favor of Obamacare, Justice Roberts consistently voted conservative on social issues and state’s rights. Will Roberts repeat last year and vote against the conservative grain? During the hearings in March, Robert’s lesbian cousin sat in the courtroom with her partner waiting for her cousin to “do the right thing.”
Figuring out how Kennedy will vote remains one of Washington’s perennial obsessions. The hunt for a consistent judicial philosophy that could explain Kennedy’s decisions is deemed hopeless. However, Kennedy has historically been on the side of gay rights and on the side state’s rights. One may guess that Kennedy will vote against DOMA as DOMA interferes with state’s rights to make their own marriage laws and is decidedly not in favor of gay rights.
How Kennedy will vote on Proposition 8 is uncertain. Here his two dignities collide. The state ballot initiative has been an important precedent for establishing the people’s will and involvement in government at the state level. Gay advocate leaders assert a fundamental substantive due process right to marry under the equal protection clause of the 14th amendment.
As public opinion drifts favorably toward gay marriage and the Supreme Court Justices finalize their deliberations, people on every side of the marriage debate expect DOMA to be struck down. However, traditional marriage supporters may still place their hope in the likeliness that to undermine the ballot initiative would absolutely undermine state’s rights and the people’s right to participate in the government. Despite the gay lobby’s claim that marriage is an “equal right,” it seems more likely that Proposition 8 will stand as well as all of the other voter initiatives in the 32 states where the people declared, “Marriage is between one man and one woman!”