SCOTUS COWARDICE CONTINUES

Yesterday I suggested that the SCOTUS’s decisions in U.S. v. Windsor (which struck down a part of DOMA) and in Hollingsworth v. Perry (which denied standing to those challenging a lower court ruling that struck down California’s Prop 8) were “somewhat cowardly,” because the Court stopped short from stating unequivocally what almost every other recent court decision has declared:  There are no good reasons to prohibit same-sex marriage. 

Let me say that again:  Recent court decisions have stated repeatedly that there are no good reasons to prohibit same-sex marriage. 

What is especially significant about these decisions is the fact that the ‘no good reason’ conclusion has been the finding regardless of what level of scrutiny courts have used.  In the 2003 Goodridge decision, the Massachusetts Supreme Judicial Court used the most conservative, deferential test available, the “rational basis” test, and found that none of the “reasons” to prohibit same-sex marriage could withstand scrutiny.  In 2008, the California Supreme Court used a much tougher test known as the “strict scrutiny” standard and, not surprisingly, also concluded the prohibition could not stand.  In Connecticut (2008) and Iowa (2009), the courts split the difference and used what is known as the “intermediate” standard of scrutiny, again concluding there were no reasons advanced on behalf of the prohibition of same-sex marriage (if interested, I provide a more detailed summary of these decisions here).

Similarly, the Court of Appeals that decided U.S. v. Windsor before the case went on to the SCOTUS used the intermediate scrutiny standard and concluded DOMA “does not withstand that review.”  U.S. District Court Judge Vaughn Walker, who issued the ruling striking down California’s Prop 8, concluded that Prop 8 is unconstitutional “because it denies a fundamental right [to marry] without a legitimate, much less compelling, reason” (p. 116), unable to pass even a “rational basis review” (p.117).

The reason for such unanimity is that the motivations behind those who oppose same-sex marriage are almost always religiously based, and a religious rationale is constitutionally unacceptable.  While there have been quibbles over other reasons, such as whether same-sex parents provide a good environment for children to be raised, these other reasons have been found consistently to be either irrelevant to the legal principles involved, or lacking compelling evidence to support them.  So, one more time with feeling, recent court decisions have stated repeatedly that there are no good reasons to prohibit same-sex marriage. 

Today, the SCOTUS denied cert to two cases involving same sex marriage: Brewer v. Diaz and Coalition for theProtection of Marriage v. Sevcik.  The second of these decisions is a direct challenge to the state of Nevada’s constitutional provision defining marriage as solely between a man and a woman.  In that decision, District Judge Robert C. Jones affirmed Nevada’s constitutional prohibition of same-sex marriage based on the 1971 SCOTUS refusal to consider a challenge to the Minnesota Supreme Court's decision in Baker v.Nelson, denying a Minnesotan’s claim to a constitutional right to marry for same-sex couples.  Though in oral arguments this past March, SCOTUS justices scoffed at the relevance of this 40-year-old decision, it remains the controlling precedent until the Court overrules or otherwise replaces it. 

By refusing to hear these cases in their next term, the Court is interpreted as indicating they are not “ready” to take on the fundamental question of whether laws and state constitutions that forbid same-sex marriage are constitutional.  Such a conclusion has nothing to do with rationality, good reasons, or legal principles and everything to do with politics.  That is why I claim their cowardice continues.