I will start with the caveat that this article does not advance any political view or social view for that matter regarding same-sex marriage. Civil Rights Litigation is something that I very much want to be part of The Coon Law Firm, PLLC and civil rights is certainly an interesting topic to blog about. I am but one attorney in Jackson, MS and my opinion counts as just one opinion in a sea of opinions. Those collective opinions become important when states like California hold a referendum on a civil rights issue.
California's judiciary legalized gay marriage and then the voters reversed the judiciary by voting in favor of Proposition 8 or "prop 8." Prop 8 defined marriage as the union of a man and a woman and ended same-sex marriage in California. Same sex marriage licenses are available in six states, Washington DC and two indian reservations. In none of those places, beginning with Massachusetts in 2004, was same-sex marriage passed through a statewide vote. Same-sex marriage has been voted on thirty one times and each time a majority of voters have voted against allowing same-sex marriage. Popular opinion, however, has not always shaped the law in the area of civil rights.
The civil rights movement is a good example of when popular opinion was usurped by what government officials deemed to be fair. A referendum reveals the purest picture of American Democracy because it removes the representative aspect of the government. It is hard to argue that the will of the people has been established thirty one to zero in favor of rejecting same-sex marriage. The Supreme Court will no doubt consider public opinion when it decides two large cases involving same-sex marriage. The court will not likely favor elitist legislatures to impose laws without regard to the prevailing opinions among their constituents. Nor will it likely show deference to what it could see as activist judges creating fundamental civil liberties based on their own philosophical view-points.
One of those cases is Perry v. Schwarzenegger. That case is on appeal to the Supreme Court after the 9th Circuit Court of Appeals ruled California's proposition 8 unconstitutional under both a substantive due process and an equal protection analysis. That ruling suggests that proposition 8 is unconstitutional under any standard of review for state laws. As does Gill et al. v. OPM. The Gill Case involves The Defense of Marriage Act (DOMA), which is a federal law as opposed to the state law involved in Perry. In Gill, the 1st Circuit Court of Appeals held DOMA to be unconstitutional because it failed to pass even a rational basis analysis.
The Supreme Court is thus faced with a same-sex marriage case involving a state law and a case involving a federal law. The Supreme Court will certainly be setting a precedent and will have to way the dictates of American Democracy against the civil rights of a minority. It will likely look to recent and pending developments in state law. Public opinion is tricky because by looking at the thirty one to zero score in popular votes one gets the impression that public opinion is against same-sex marriage. However, polling indicates that for the first time a majority of all Americans are in favor of same-sex marriage. Also, the percentage of American's supporting same-sex marriage has been rising dramatically and consistently for more than fifteen years. (see the Gallup Poll) .
This humble attorney will update this blog when the highest court in the land rules on these cases, but CNN will more than likely beat me to the punch. We do the best we can with what we have at the Coon Law Blog. Your attorney believes that the court will hold rule that both DOMA and Proposition 8 are constitutional but will decide the issues as narrowly as possible in order to leave room for change in this area of civil rights. It is not likely that the court take the position that the government has no interest in banning same-sex marriages and thus the laws will pass rational basis scrutiny and be held to be constitutional. Effectively providing two momentous decisions that do nothing. The state of the law will not change and the issue will still be fought out through referenda and legislative sessions throughout the several states. It will not be a death blow to either side of the debate and the public discourse will continue as the country continues its 235 year struggle to determine the nature and extent of the people's civil rights.
You can read and/or listen to the audio of the NPR story here: "Same-Sex Marriage May Hinge on Supreme Court"