Supreme angst

Not long after two big gay cases were accepted by the Supremes, Justice Antonin Scalia makes a whopper of an anti-gay remark. He was at Princeton pushing a new book when gay student Duncan Hosie (new media darling) asked about Scalia's dissent when anti-sodomy laws were struck down in 2003. Scalia affirmed his equation of gay sex to bestiality and murder. He concluded by saying, "If we cannot have moral feelings against homosexuality, can we have it against murder?"

Yup, that's one vote against us in these big gay cases.

This is just one of many reasons for the gay blogsphere being all abuzz over the angst that won't be resolved until next June when decisions are announced. Getting a case to the Supremes is no guarantee they will rule in our favor.

So, at least for now, there is endless dissection and tea-leaf reading to determine if gay weddings can abound in July or if our cause is held back for another decade.

The Democrat organization Third Wave created a chart of all the possible outcomes of the two cases. I'll let you peruse the charts yourself.

Ari Ezra Waldman, a lawyer who blogs for Towleroad, doesn't believe the angst is justified.

In taking the Calif. gay marriage case the Supremes said they will look at two questions:

1. Whether California can define marriage as a union between one-man and one-woman and be consistent with the Fourteenth Amendment to the U.S. Constitution.

2. Whether the Prop 8 proponents have Article III standing to bring the case.

The angst is because the first question appears much broader than the decision handed down by the 9th Circuit Court. That court said Calif. can't award rights and then take them away.

But a broad question doesn't demand a broad answer. The Supremes have some options.

The first option is to use that second question, the one about standing. I'll look at that through a detour.

Several years ago I heard the story from sometime around 1850 in which white lawmen put a black man in jail (alas, my memory didn't keep details of what the charges, likely fraudulent, were). The black suspect appealed to the Supremes but the lawmen said the Supremes had no jurisdiction in the case. The Supremes thundered back that since they were the top court in the country they had jurisdiction in any case they say they have jurisdiction in. In response the lawmen executed their suspect. No more case.

The question of standing is because an entity can only bring a case to the Supremes if that entity is personally injured by it. That seems to contradict the claim that the Supremes can stick their noses into any case they want. However, part of this case has to do with whether it should have gotten to the 9th Circuit. Timothy Kincaid of Box Turtle Bulletin explores that issue.

When the case went before the district court (the first level, which was very thorough) the state of Calif. defended it (though the state attorney didn't do much more than say, "Yup, judge, we're here," before turning it all over to the group that ran the ballot campaign we lost in 2008. The judge in that case ruled in our favor.

On to the 9th Circuit. This time the state (both Gov. and Attorney General) said the lower ruling was just fine with them. The 9th Circuit asked the Calif. Supremes whether the ballot organization. was permitted to bring the case. The state Supremes said yes -- elected officials should not be allowed to thwart ballot initiatives by refusing to defend them.

But Kincaid sees four things the US Supremes might object to.

* The Calif. Supremes based their ruling on logic, not on existing laws.

* A law created through ballot initiative must have a defense but may not deserve an appeal. Once a lower court says it is unconstitutional state officials should be able to use their brains to decide to appeal.

* Once it is declared unconstitutional voters might be willing to live with that result.

* Even if the gov't won't defend the initiative the people who got it on the ballot and worked to pass it might not be the best ones to defend it in court.

So the issue is whether the case should have gotten to the 9th Circuit. Current precedent is cloudy, so the Supremes could use this case to clarify the rules. If they say the Calif. Supremes are wrong, the district court decision stands and gays may marry in Calif.

Back to Waldman's discussion and his second option. The Supremes could affirm that the 9th Circuit's decision was proper, that Calif. can't take away rights it once bestowed. That option is not sound law because Calif. still gives gay couples all the rights but the use of the word "marriage."

The third option could be a ruling that applies to all the other states that have everything but the word marriage. There are seven other such states.

The big options (which Waldman didn't discuss) are: declaring gay marriage bans are just fine or declaring gay marriage bans are unconstitutional and permitting gay marriage everywhere. These are the two options where we win big or lose big.

Waldman's conclusion: the Supremes haven't restricted themselves to the two big options, so keep calm and carry on.

Gay radio host Michelangelo Signorile reviews the same options Waldman did and concludes that perceptions of gay people have changed radically in our favor. The Supremes may slow down the momentum with an unfavorable ruling, but they can't stop it. Taking our cases to the Supremes now may be a bit risky, but the work towards equality deserves a few risks.