Marriage Equality’s Big Day Coming
The Supreme Court will hear oral arguments on Hollingsworth v Perry (California’s Proposition 8) on March 26, 2013. Their decision could tip the balance and move the Country towards full marriage equality.
Also being heard on the 26th will be US v Windsor better known as the Constitutionality of the Defense of Marriage Act (DOMA). Proposition 8 is about the California Constitution while DOMA is about the US Constitution.
Former Governor Jon Huntsman has just written in “The American Conservative” that marriage equality is a conservative issue. Now a number of prominent Republicans are signing a brief Ted Olson plans to file with the Supreme Court this week. Olson’s intentions are to show the Court the degree to which public opinion has moved in America.
Olson’s arguments will be similar to both cases. Both Constitutions speak of equal rights. So why should committed same sex couples not receive the same treatment under the law as heterosexuals?
Counter arguments will range from a religious based “marriage is a union only of one man and one woman” to recognition that it was a California popular vote that passed Prop 8, and a duly elected Congress passed DOMA by a large majority.
It is just as interesting what won’t be argued.
The most obvious is why are States and the US involved in marriage at all. Why is marriage not left to private associations like churches or even the Elks Club (if you are not a church fan). These institutions should be able to set the rules as they see this issue. Hmmm.
The role States and the US government play is more related to contracts, written or implied. The government’s arena is documenting these “civil unions” and laying out the playing rules.
Who can marry (like at what age, existing relationship), what is common property, what happens to that property if the “union” should end, and who can represent the other in end of life decisions are a few obvious issues where the Government must have a role.
The Supreme Court has historically looked to public opinion in deciding cases where the Constitutional issue is cloudy. With these two cases, many would predict that the conservative Justices would prefer to keep the “one man, one woman” practice. Unfortunately, both of the Constitutions as well as public opinion now favor marriage equality.
The Supreme Court can, if it chooses, place itself on the winning side of history.