Today, the nine members of America’s Supreme Court heard part one of a two-part oral argument regarding gay marriage in this country; hearing the arguments from both sides of California’s Prop 8 case otherwise known as Hollingsworth v Perry.
And while media outlets across the country are now trying to spin, dissect and interpret the words of each Justice during today’s hearing, the members of the nation’s highest court has an even bigger dilemma than the case before them. How will their ruling, or lack thereof, be perceived by the American electorate?
Oral Arguments of Prop 8 Case
If any justice tells you that they don’t rule on cases with a sliver of concern regarding their ‘legacy’ in mind, they’re either lying or in denial of their true human nature. And as Chief Justice John Roberts tries to shape this court to be one with legendary status the likes of the Earl Warren court, he’ll have a hard time justifying a 5-4 split decision that most political observers believe should be a fairly simple ruling?
Though the country remains almost evenly divided on the issue, court observers and legal scholars have weighed in with this Examiner expressing their belief that Prop 8 didn’t provide the standing needed for the court to even consider making a ruling one way or another.
And with the federal Defense of Marriage Act coming up tomorrow, many speculate that the Justices will strike down DOMA while sidestepping Prop 8, thereby leaving it up to the states to decide whether or not marriage should be open to same-sex couples. “It’s an issue that you witnessed certain justices today using extreme caution or deference as to their opinion on a case that as Justice Alito referred was ‘newer than cell phones and the internet’,” says independent political analyst Shaun Louis.
“I just don’t see these justices making a sweeping ruling on an issue that doesn’t seem to have the demand of a Brown v Board or even a Loving v Virginia – which was mentioned quite often throughout today’s arguments.”
Yet, while Justice Anthony Kennedy made several references, which sounded more like sound bytes than concern, about the effects this ruling could have on the close to 40,000 children living with same-sex couples in California; the bearing on children of gay couples doesn’t seem as great as it did on the bi-racial children in the 1967 Loving case – which was based on whether or not to prevent marriage based on race. Nonetheless, the possible damaging affect their ruling on either case could do to families and children nationwide, should certainly be of interest to all nine justices.
Arguing on behalf of same-sex couples to have Prop 8 struck down, was the famed constitutional attorney Theodore ‘Ted’ Olson, who ironically was joined by co-counsel David Boies – the man he opposed in the Bush v Gore Supreme Court hearing on the 2000 elections. Now, the dynamic duo was facing off against gay marriage opponent Charles Cooper, who consistently referred the justices to the argument that same-sex marriage undermines traditional marriage’s definition of ‘responsible pro-creation’.
“So should we then ban those people over 55 years of age from marrying since they can’t create life,” asked a condescending Justice Elana Kagan.
And yet, with hundreds of both gay marriage supporters and opponents lined outside the Court, and traveling throughout the Capital today – and certainly even more to do so tomorrow; it seems unlikely the court would make a definitive ruling on a such a polarizing and divisive issue – which is strange being that the Robert’s Court remains the most conservative and polarizing courts in American history.
Having already ruled on more decisions by a 5-4 split verdict than any other court in history, per percentage of cases (21.5%), the conservative court that came down on the side of ObamaCare, seems less likely to side with the administration’s argument for DOMA or gay rights?
Transcript of Prop 8 Case
Even while nine states, including the District of Columbia, allow same-sex marriage, along with a dozen states that allow civil unions or domestic partnerships without the full marital benefits; it is less likely that the court, whose make-up has eight of the nine judges residing from liberal states that allow such unions, would make a hasty decision on probably the most polarizing political issue of the 21st century?
And ironically, the only Justice that doesn’t hail from either California, New York or New Jersey, Justice Clarence Thomas – a Georgia native who happens also to be the only African American member of the court – remained silent during the entire oral arguments of Prop 8. Yet, the conservative justice who says that the arguments before the court almost never sway his decision on a case, allowed his silent to confuse some court observers who believed he’d chime in.
However, regardless of the show that America gets to witness over the next 48-hours, it seems unlikely that the citizens of this country will be satisfied with the decision, or lack thereof, of this court? And with other pressing issues coming before this court during this session, including affirmative action and Section 5 of the 1965 Voting Rights Act; the Robert’s Court will have plenty of time and decisions to make them at least appear to be on the level of a Warren court.
But based on the politically polarizing and divisive split decisions that has consumed the courts for the last 30-40 years, its unlikely the American electorate will ever have the same level of respect for the Supreme Court it once had?
*I was on FoxNewsRadio today discussing the Prop 8 oral arguments w/Rich Johnson, Senior Correspondent which can be found here
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