Dan Walters: Supreme Court unlikely to be bold in Prop. 8 case
03/27/2013 12:00 AM
07/19/2013 10:00 PM
Morally and logically, there's no reason that same-sex couples should be denied the right to marry and thus hold the same privileges and responsibilities of other married couples.
Even though an increasing number of other Californians now share that opinion – likely a majority, in fact – the state's voters approved Proposition 8, a constitutional amendment that declares that only marriages between men and women are legal, five years ago.
Those who fervently favor "marriage equality," as they call it, and those who just as adamantly believe in the legal and moral sanctity of traditional man-woman marriages, both want the U.S. Supreme Court's ruling on Proposition 8's legality to be decisive.
However, it appears from justices' questions and observations Tuesday that the court may not issue a sweeping ruling that would settle the issue once and for all for the entire nation.
As it has on other issues, the court may resolve its own internal discord with a narrow ruling that would apply only to California and not affect other states.
It could dismiss the case, as swing vote Anthony Kennedy (a Californian) seems to suggest, thereby indirectly upholding the lower federal rulings that the measure, as drafted, is an unconstitutional abrogation of Californians' rights. It could directly uphold the lower court rejection of Proposition 8. Or it could affirm the right of California voters to legislate on the definition of marriage as they see fit.
Any of those approaches would leave intact the laws of other states, either favoring or disfavoring same-sex marriage. That possibility arises because Proposition 8 is not only an issue of same-sex marriage, as true believers on both sides contend, but one of states' rights to decide such matters according to their own cultural values, either through the legislative process or via ballot measure.
When the Supreme Court issued its decree on abortion rights four decades ago, it usurped state-by-state determinations on that equally explosive and divisive matter and, it's now conceded even by some supporters of "choice," it engendered decades of political turmoil by leapfrogging ahead of public sentiment on the issue.
Mindful of that, the current court appears to be more cautious on the marriage-equality issue and may be more inclined to let public opinion evolve before engraving a pro-equality position into national law, as it did on abortion.
California's long-term cohesion might be better served were Proposition 8 to be upheld as an exercise of states' rights and then repealed and marriage equality be ratified via another ballot measure, as it probably would be today.
Such an outcome would avoid the specter of having a court 3,000 miles away overturn voters' decision, even one that now appears to be wrongheaded.
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