The Free Press, Mankato, MN

Editor's blog

December 7, 2012

How will Supreme Court rule on gay marriage challenges?

Many were surprised, a few were happy and others worried when the U.S. Supreme Court announced on Friday that it would hear challenges to gay marriage laws with regard to California's Proposition 8 ban on same-sex marriage and the federal Defense of Marriage Act.

Those who were surprised figured that court would rather dodge this hot-button controversial and political issue.

I always believed they would hear these cases. The court, under the leadership of iconoclast conservative John Roberts, just can't resist weighing in on important, popular and controversial issues of the day. They all have enough ego for that.

The rulings and their direction will be much more difficult to predict. I tend to think they will disect the constitutional issue in the California case, i.e. can the courts overrule a decision by the people in the constitutional amendment and/or did a constitutional amendment take away rights gays and lesbians already had.

In such a vein, they would leave open the larger question if state's can ban gay marriage. That would seem consistent with the kind of state's rights advocacy the majority takes.

The challenge to the Defense of Marriage Act to me will be more aligned with the parameters of those inter-racial marriage cases of decades ago. It will deal with the federal government's power to rule over the decisions on individual freedoms.

I see this court beginning by leaning against federal intervention in such matters. It's a conservative notion and the majority leans conservative. Getting the liberal justice votes on this one would think would be a no-brainer.

Both sides claim to have the court on their side simply because the courts decided to hear the cases. They can say a great deal by refusing to take up a case.

The proponents of gay marriage claim the justices decided to take the case as a matter of articulating individual liberty consistent with gay marriage. Opponents argue that justices took the cases to more or less "set the country straight."

I basically think they will split the difference and rule that states can ban it but the feds cannot.

Either way, we're likley in for another news bonanza when the ruling comes out, much like we saw with the health care ruling in June.


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