A Time For Dissecting Babies?

Garrett Epps explains the announcement that the Supreme Court will weigh in on gay marriage:

United States v. Windsor and Hollingsworth v. Perry are a matched set, each turning on when government in the United States may discriminate on the basis of sexual orientation and when "equal protection of the laws" forbids such discrimination.

Windsor is a challenge to the Defense of Marriage Act, which declares that federal marriage benefits are available only to "a legal union between one man and one woman as husband and wife." In it, the Supreme Court is likely to revisit the question of when, if ever, it makes sense for society to discriminate against gay couples or individuals. The Second Circuit Court of Appeals in effect decided that the answer is virtually never. Homosexual men and women, it reasoned, have been subject to such long-lasting prejudice and persecution that any law affecting them must be presumed invalid unless government can show a very good reason for adopting it.   

Hollingsworth v. Perry concerns a California ballot initiative that declared "only marriage between a man and a woman is valid or recognized in California." In Perry, the Ninth Circuit Court of Appeals fudged the issue, holding that California's decision to offer marriage to gay couples, and then to retract the offer after a popular vote, was so arbitrary that no court could uphold it.

If the Supreme Court holds that neither federal nor state law can restrict marriage, the result would be revolutionary. Although the lawyers behind Perry are determined to obtain such a ruling, it seems less likely than another: that states may restrict marriage, but if a state decides to open the institution to gay people the federal government may not refuse to recognize the resulting unions.

A decision that restrictions on gay marriage don't violate the Constitution would not halt or reverse the trend demonstrated in last month's referendum victories for same sex marriage. It would nevertheless be a profound setback to the movement for equality -- history provides mournful examples of court cases that slowed needed social change, sometimes by many decades.

This will be a very interesting case to watch.  Most of the issues in the two cases have been addressed by the Court in very historic cases previously.  Decisions for federalism in inequality of the law were made in both Dred Scott (although that was only a small part of it) and Plessy v. Ferguson.  The case for overturning bigoted state marriage laws was made in Loving v. Virginia, and the issue of state stigmatization/criminalization of homosexuality was addressed on opposite sides in Bowers v. Hardwick and Lawrence v. Texas. 

This highlights the quandary the conservatives in these cases face.  To rule for the states' rights to discriminate puts them in the territory of some of the worst rulings in court history and against some of the most historic.  However, all of the conservative members have been in favor of states' rights versus federal power for their entire lives.  Roberts and company have to know that within 25 years (at the furthest) any case ruling that states have the right to decide against gay marriage will be overturned, either by the voters or, more likely, by the Court in a Loving style case.  It will come down to their willingness to stand for federalism (and favoritism of majority religious belief and/or bigotry) over civil rights against the nearly certain judgement of history. 

I really can't see the conservatives being willing to uphold DOMA, and expect it to be overturned in almost any outcome.  It will be the issue of federalism versus civil rights and the Fourteenth Amendment which will be the most controversial and momentous.  Conservatives have had it in for the Fourteenth Amendment and federal power for a long time.  They have to know that they are on the wrong side of history, but will they revel in locking in that place in the future?  Epps says the case comes down to Kennedy.  However, the same thing was said about Obamacare, and it came down to Roberts.  I will be interested in seeing what happens here.  I would say that there is a real possibility that you could see up to a 6-3 ruling for a historic overturning of all the state bans, but that isn't a large possibility.  5-4 or 6-3 for the states and against DOMA are probably the most likely, with some dodge on technicalities being between that and the historic decision.