The gay marriage issue, centered around Prop 8 in California, is marching its way up the court system.
A Federal judge in that state has overruled Prop 8 and upheld the rights of gay couples to marry. On it will go to the 9th Circuit Court of Appeals, which is notoriously liberal and will most likely uphold the lower court’s decision, although the 9th Circuit has surprised us on a few occasions, such as their incorporation of the Second Amendment against the states.
However, after all is said and done, I don’t think gay marriage will survive the Supreme Court.
The Court’s current makeup is 4-4-1; that is, four conservatives who will surely uphold Prop 8, four liberals who will surely overrule it, and one swing vote, in the form of Anthony Kennedy. Justice Kennedy leans toward civil libertarianism and has generally upheld gay rights in the past. But, things are different this time, and here’s why:
Supreme Court justices generate their research, and ultimately their opinions, from a variety of sources. The first is the doctrine of stare decisis, which states that judges are essentially obliged to uphold legal precedents established by prior decisions.
Respect for stare decisis varies from judge to judge. Clarence Thomas, for instance, has publicly stated that he has no respect for stare decisis and will overrule any prior decision with which he disagrees. In his words, if a decision is wrong, then it’s wrong, and it needs to be overturned.
The more liberal justices have demonstrated a stronger regard for stare decisis, but one must wonder if it’s because taking such a position has ultimately allowed them to vote their own political beliefs and opinions.
The second major source of justices’ research, of course, is the Constitution itself, and the precedent of Constitutional law. This of course is wide open to interpretation. For example, regarding interpretation of the Second Amendment, Clarence Thomas will tell you that all gun control, in any form whatsoever, is unconstitutional and must be struck down, while Stevens and Ginsburg will tell you that only the U.S. Military and National Guard have any constitutional right to bear arms.
Next on the list would be the writings of the Founders themselves. In attempting to interpret more ambiguous sections of the Constitution, the justices will read the writings and minutes of meetings of the Founders in order to determine what they really meant and intended.
Some justices, including the normally conservative-leaning Kennedy, have used international law as a basis for their opinions, though this practice has proven controversial, particularly among conservatives who, like me, believe that a sovereign nation such as the United States shall not be influenced by alien law, as it is called.
But the one source of justices’ votes and opinions that matters most in this issue is, quite simply, the court of public opinion. While justices firmly on the left or on the right largely ignore public opinion and vote their own opinions, more moderate justices heavily consider public opinion. This was the case with Sandra Day O’Connor, and it is the case with Anthony Kennedy.
For example, in voting to strike down the juvenile death penalty, Kennedy cited the fact that only five states had legalized it.
As things stand today, only six states out of fifty have legalized gay marriage. More specifically – and insidiously for the gay marriage movement – the vast majority of states have outlawed it in the form of constitutional amendments.
And this is why gay marriage has little to no chance of getting past Justice Anthony Kennedy, despite his general support for gay rights.
Justice Kennedy, quite simply, will not usurp the will of the people. While gay marriage advocates will talk about the “tyranny of the majority” or that we’re a republic and not a democracy – which is not entirely true since the United States is in fact a Democratic Constitutional Republic – at the end of the day, six states out of fifty is so overwhelming of a minority in the court of public opinion that it simply cannot stand.
Despite the arguments on both sides of the issue, the fact of the matter is that gay marriage is a states’ rights issue. If a state like California wants to ban gay marriage, that is their right under the Tenth Amendment. If other states such as Connecticut want to legalize it, that is their right as well. Forcing gay marriage on states that oppose it is downright wrong, and violates our Constitution and Bill of Rights.
It is highly unlikely that the Court will strike down Prop 8. They will most likely uphold it, or remand the case back to the lower courts for reconsideration. After all it was lawfully voted in and implemented per California’s system. (Ironically, it was liberals who insisted on implementing the ballot proposition system in California as a way to usurp the legislature. Now they’re crying foul because it’s no longer working in their favor. Sorry, but you can’t have it both ways!)
This, of course, refers to the current makeup of the Supreme Court. With Obama’s chances of reelection looking grim, chances are we’ll have a conservative Republican president come 2013, who will appoint conservative justices, should he or she have the opportunity. Alito and Roberts are too new and too young to retire anytime soon. Thomas isn’t going anywhere – he’s even publicly taunted his critics with that statement. It is doubtful that Scalia will leave, with his beliefs and convictions nearly as strong as Thomas’.
That leaves Kennedy as the most likely to retire under our next president (if at all). Which means that the moderate, swing vote conservative, will be replaced by a firmly right-wing, steadfast conservative. And if that happens, gay marriage, along with other liberal causes such as gun control, will be dead for at least another generation.
Tomorrow: I’ll post an article explaining why I oppose the legalization of gay marriage. Contrary to popular belief, it has nothing to do with religious or conservative views but instead is, ironically to some, for libertarian reasons.
