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Opening Arguments

Blips on the gaydar

I guess I'm a little surprised it's coming this soon, but we've been talking about this here for a few years -- the obvious need of the Surpeme Court to tackle the gay marriage question. It has decided to review  the federal Defense of Marriage Act and California's Proposition 8, both of which make "one man, one woman" the standard. It takes four justices to grant cert, so the guessing game today involves whether it was the liberal wing for the conservative wing that decided to roll the dice:

My hunch is that it was the conservatives who voted to take both cases, not the liberals. The liberals have no real incentive to touch this right now. They were just granted four more years to hope for a conservative vacancy on the Court, at which point gay marriage by judicial fiat will be a fait accompli. The more states enact gay marriage in the meantime, the stronger their political position will be when that moment finally arrives.

The conventional wisdom is that the usual four conservatives will vote to uphold DOMA and Prop. 8, the usual four liberals will vote to overturn them, and Justice Kennedy will be the deciding vote. I'm not sure it's that straightforward, though: Consider these remarks, from Justice Scalia's dissent in Lawrence v. Texas:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.... I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so....

That's not exactly libertarian, I know, but recognizing the right of any group to of people "to promote their agenda through normal democratic means" is a lot more tolerant than the caricature of conservatives we're usually treated to. If I had to guess, I'd say there won't be anything sweeping, like a declaration from on high that gay marriage is decreed or forbidden federally. Rather, there will be an acknowledgement that states can continue to proceed as they have, deciding at that level whether to recognize gay unions. Whether a state should have to recognize the gay marriage solemnized by another state -- that remains the central question to be resolved, and I'm not sure the court will address that.