During the third day of confirmation hearings for Supreme Court nominee Sonia Sotomayor, the associate justice hopeful was asked -- in a sideways manner -- about the federal Defense of Marriage Act.

Iowa senator Chuck Grassley asked Sotomayor whether same-sex marriage is under federal jurisdiction, especially timely with a case to repeal California's Proposition 8 making its way through the court system.

Grassley mentioned the case Baker v. Nelson, a 1972 ruling that Minnesota's laws limiting marriage to opposite-sex couples did not violate the U.S. Constitution.

Sotomayor replied that she could not comment on the matter, because of the pending marriage cases in states across the country, as well as the federal case heading in the Supreme Court's direction. She also said that she had not reviewed Baker, but offered to read the case and speak about it Thursday.

Labels: courts, DOMA, gay marriage

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Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I’d like to avoid that, too.

But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.

But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.

Labels: courts, gay marriage

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...Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

Labels: courts, gay marriage

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...Consider for a moment who has been excluded from the interpretation of equal protection's "'true' principle": the judges' personal views don't apply, the relevant legislators' personal views don't apply, the people's personal views (as expressed democratically) don't apply, and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don't apply. So from whence — by whom — is it determined that the true meaning of the equal protection clause requires that the true meaning of marriage be something other than what it has always been understood to be — a relationship between men and women?

Ah, there's the nub. The reality is that, like the interstate process of bouncing judicial rulings, the whole thing is a performance to enact the preferences of an elite class as written into the "hunches" of judges.

Labels: courts, gay marriage, Iowa

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