The Spectacle Blog

Roberts Blows Gay Marriage

By on 6.26.13 | 1:04PM

There are two strands of conservative thought on gay marriage. The first, and loudest, is the natural rights argument that it should never receive legal recognition in any jurisdiction. The second, to which I subscribe, is federalism: let each state decide what it wants to do. 

What the H___ do I care what they do in California? And I was quite happy with the Court's federalist construction of the Voting Rights Act yesterday.

A federalist take on the two cases before the Supreme Court would have been to strike down both the Defense of Marriage Act and the Ninth Circuit's overturning the decision on California's Prop 8 (which banned gay marriage in California). 

In the first case before it, the Supreme Court struck down DOMA, under which the federal government in its laws did not recognize a New York same-sex marriage. In the second case the Court was asked to rule on whether California could refuse to recognize same-sex marriage. On the what’s-sauce-for-the-goose principle, both DOMA and the Ninth Circuit decision on Prop 8 were questionable on federalist grounds.

But that's not how they came out. The liberal wing of the Court plus Kennedy struck down DOMA, with Roberts dissenting on the issue of standing to sue. Then the Court punted on Prop 8, holding that the plaintiffs (hey, they weren't a gay couple) didn't have standing. On the standing issue Kennedy and Roberts were consistent. Kennedy didn't see a standing problem in either case, Roberts did. Both cases were 5-4.

I don't have the second case in front of me but here's what I think explains what happened. The liberal wing, voting strategically, didn't see a standing problem in the first case but did in the second. In doing so they got the result they wanted in the first case and avoided a loss in the second. 

So who's to blame? Not Kennedy. Roberts. Had Roberts, as he well might have done, come out the other way on standing, I surmise (reading between the lines) that there would have been a 5-4 majority reversing the Ninth Circuit and upholding Prop 8.

In short, this is a replay of the Obamacare decision of a year ago, in which Roberts nimbly managed to produce a result that did not displease the left. 

The federal bench is, I believe, the strongest in the world. Except at the very top.

One last thought. The first case involved a lesbian couple who married in Canada. Gay marriage has been legal there for 10 years or more. Know how many gays get married there? 0.3 percent of all marriages--and many of these are people from the States. So no, the sky is unlikely to fall. Instead, the DOMA case can be seen as one more example of the expanding field of narcissist law.

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