Saturday, December 8, 2012

More legal analysis

Two from Soctusblog, well worth reading.

Lyle Denniston considers the standing issue
But besides accepting for review the questions raised in those two petitions, going to some of the fundamental constitutional disputes over marriage laws, the Court — somewhat at the prompting of some of the parties — added questions to each case about its authority to rule. The added questions themselves are constitutional in nature: they arise under Article III, and its grant of power to the federal courts. But that is a power to decide only a “live” case or controversy, and that means there have to be two sides with the legal right to be in court before Article III can be satisfied.
Kenji Yoshino on how the Prop8 case could be "incremental"
DOMA represents an intrusion of federal law into the traditional state domain of family law. As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle—Justice Kennedy—has historically favored both. 
The second premise is that the Court will wish to proceed incrementally—that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus. 
It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop 8 in at least three ways.


JCF said...

I think changes are going to come sooner, rather than later.

"States Rights" arguments crash on the rocks that A Lincoln identified so long ago: (quoting Jesus) "a house divided against itself..."

The specific mechanism that brought about Loving v Virginia, was an interracial couple marrying where it was legal, then moving (in their case, returning) to a state where it wasn't.

We're a much more mobile society than in 1967. How can a married couple lose rights by crossing state lines (and how much moreso if, God willing and outcome expected, SCOTUS finds for Edie Windsor? Federal marriage benefits then lost at the state line)???

That would be incoherent . . . and I don't think even a conservative like CJ Roberts wants that!

IT said...

The Loving case was decided after most states had already rejected anti miscegenation laws. We're not in that situation here.

What I fear is the split decision on a states' rights bais: DOMA falls, but Prop8 stands. And that leaves us the long hard slog through the elections.

JCF said...

I guess I'm just more optimistic than that (re Kennedy and Roberts).