A Little Supreme Court Skepticism?

Today, my Facebook feed is all gay marriage, all the time. But while college kids sanctify their progressiveness by uploading pictures of equal signs, it looks like the Supreme Court is treating the issue with a little more skepticism.

Justice Alito (“the Burkean justice“) asks, “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean . . . we do not have the ability to see the future.” It looks like some of the others are at least open to throwing the case out for lack of standing. (Ironically, such a “setback” would only happen because the petulant Governor Brown refused to defend Prop. 8 in court!) Dismissing for standing would leave the lower court ruling against Prop. 8 in place, but would stop short of imposing the Court’s definition of marriage on the rest of the country.

The New York TimesAdam Liptak writes that the justices are partially motivated by fear of creating a new Roe v. Wade, which, rather than settling cultural disputes, only exacerbates them. According to Liptak, even Justice Ginsburg has her qualms:

Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

I have no basis to predict how a pro-gay-marriage ruling would compare to Roe. And predicting rulings on controversial cases is generally a loser’s game. Months from now, all of today’s armchair speculation might look incredibly naive.

But, at the very least, it’s nice to see the justices expressing a little more skepticism against pushing the entire country in their preferred cultural direction. Why, after all, do Alabama and California need to have the same marriage laws? And why should Anthony Kennedy be the one to decide that?

Categories: Uncategorized | Tags: , , , , , , , | 3 Comments

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3 thoughts on “A Little Supreme Court Skepticism?

  1. Paulo Sanchotene

    Are you sure a standing decision would preserve the lower court decision? It seems that, depending on how they decide, it could throw the whole dispute into the trash can: http://www.nationalreview.com/bench-memos/343951/standing-issue-prop-8-case-ed-whelan

  2. prsancho

    P.S.: I still think the state has no power whatsoever to decide what a marriage is. It is a matter of church/state separation. As I have said in other post, the state can regulate “civil unions” (patrimony), but not create “civil marriages” (matrimony).

  3. Kelse Moen

    As I understand it, the standing issue is about standing to appeal. So the appeals would be thrown out, but the trial court’s decision (against Prop 8) would remain. See, for instance:

    http://www.scotusblog.com/2013/03/the-proposition-8-oral-argument/

    http://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/prop_8_standing_and_cert_improvidently_granted_in_the_california_gay_marriage.html

    I guess they could accept Ed Whelan’s argument too, but is just his opinion.

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