Dred Anticipation

The Supreme Court of the United States is due to issue its decisions in two important cases that will have major impact on the lives of gay and lesbian persons, whichever way the decisions go. The cases involve the Proposition 8 referendum in California that restored marriage inequality in that state, and the Defense of Marriage Act by which the Federal government chose not to recognize same-sex marriages for national purposes.

The constitutional issues involved in each case are different, linked by two common threads: who will suffer or benefit on the basis of the decisions — gay or lesbian couples who are married or wish so to be — and the constitutional concern for states’ rights. There has been considerable reading of tea leaves by legal scholars with far more experience than I possess, as an interested amateur. The Justices were hard to read during the presentations of the cases, and their comments and questions have been sifted for signs of which way the wind might blow.

Nonetheless, I will offer my assessment in advance of the release of the decisions — almost certain to appear next week, either on Monday or Thursday. I do not think the Justices will pick up the rights issue as a fundamental matter, or at least not in a majority decision. Whether one is an originalist or a strict constructionist or a revisionist, it is likely a step too far. However, when it comes to states’ rights, I think the Court has a logical and consistent hook on which to hang a pair of decisions that defer on Prop8 to the State of California (including its courts and legislature as well as its plebs) and strikes down DOMA as a rejection of the up-until-recently standard recognition that marriage law is settled by the states, and a marriage recognized in a state should also be recognized for Federal purposes. (I do not understand that the Full Faith and Credit Clause was part of this case, so this may not mean that all states will have to recognize marriages made in other states where they are made under that state’s law. I welcome correction if I have misunderstood.)

On the other hand, the Court could hold, likely by a small majority, that these cases have come too soon. How history will judge this Court remains to be seen. Will this be another Dred Scott, or a Brown or Loving? History is the only truly neutral judge, and there is no escape from its verdicts.

Tobias Stanislas Haller BSG

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