The Supreme Court has agreed to hear an appeal from gay couples whose marriages are illegal in some states in the 6th Circuit Court of Appeals. On Friday, January 16, 2015 SCOTUS voted to accept the appeal involving same sex marriage bans in Ohio, Michigan, Tennessee, and Kentucky.


A couple things are surprising about this.

First of all, the decision appealed from, that of the 6th Circuit Court of Appeals, was by a 2-1 majority of a three judge panel. The losing parties could have asked for a review by the Circuit En banc which would have meant a re-hearing before all the judges in the Circuit. Since the two ruling judges were Bush appointees, and since all other Circuits ruling to date have struck down bans, it is very likely the entire court would have reversed.

And since that review was possible it was a little surprising that SCOTUS did not refuse to accept the case until further action by the Circuit judges as a whole.

Although the Supreme Court leans conservative…absurdly so as in Citizens United (which they certainly are not)…it did strike down DOMA in 2013 which action, at least in part, has led to the ensuing decisions in federal courts.

The 6th Circuit decision was premised on the notion that gay marriage should be a matter for legislatures, not courts.

Were that notion to be followed by SCOTUS in this appeal, it would undermine and effectively be a repudiation of Loving v Virginia, the 1967 case that negated state laws against interracial marriage. Recall that marriages between the races were once considered to be as immoral and as contrary to Biblical teachings as some continue to claim gay marriages are today.

Of course any prediction of Supreme Court decisions is fraught with peril for the predictor. And the most harrowing of these potential perils is pure embarrassment at being wrong, no matter the level of legal expertise and knowledge of the inner workings of the Court and the nine Justices. My own level of expertise is surpassed by many observers with far greater experience dealing with the history and nuances of Constitutional Law.

Yet it is difficult to imagine a Supreme Court with the recalcitrant likes of Justices Samuel Alito, Antonin Scalia, and Clarence Thomas being able to stem the tide of history. As we saw in the Affordable Care Act ruling Chief Justice John Roberts abandoned his natural conservative bent to provide the saving vote, albeit in a strange construct claiming the law was entirely within the power of Congress to tax while he, in effect, ignored its power to govern Interstate Commerce.

In a way looking at the ACA as a tax scheme satisfied the conservative base while simultaneously appalling and infuriating that same base by finding that “tax scheme” all huggably legal. Of course the conservative base considers any tax scheme to be the greatest sin perpetrated upon mankind.

Since Justice Anthony Kennedy has been ever more consistently liberal on any case remotely touching upon gay rights adding him to the four Court liberals is not illogical with the chance that Roberts finds a way to come aboard withe the majority.

Somehow 6-3 decisions of the Court sound more persuasive to Americans than does a 5-4 one. But the assumed persuasiveness is questionable given the 7-2 Roe v Wade decision and we know how well that has been embraced. Brown v Board of Education was a unanimous decision but  met both immediate and long term resistance in practicality if not in legal challenges.

Morality aside, there is simply no reason for gay marriage bans to be upheld. Not that I agree that such unions are immoral, but the Supreme Court does not rule on the basis of morality. Thus, we still have the death penalty.

SCOTUS has ruled that laws forbidding gay sex are unconstitutional in Lawrence v Texas. It has ruled that denying gay married couples certain federal benefits in states banning gay marriage is wrong in the DOMA case. It seems inconceivable, as an extension, that it would permit states, in effect, to restrict the interstate movement of couples legally married in one state by disallowing them to enjoy the same marital rights as other couples.

From that point is just a short distance to determining that there is no Constitutional justification to banning consensual adult couples from marrying no matter their gender.

I can just picture Rick Santorum rubbing his hands in glee now that he can fulfill his lust for the family dog.

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  • Little_Minx  On January 18, 2015 at 11:25 AM

    According to the PBS News Hour, BOTH sides of the issue are eager for the SCOTUS to decide this. Pundits also think it plausible that Roberts could join a five-justice majority.

    I bet the Santorum family dog would attack Rick’s dangly parts if he tried any bestial funny business.

  • toadsly  On January 18, 2015 at 12:24 PM

    It’s past time to allow same-sex unions in all 50 states.

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