It’s 2012, So The Supreme Court Will Debate Same-Sex Marriage Now

This past March, we wrote a post entitled “The Most Epic, Monumental, Game-Changing Supreme Court Case In History.” We may have exaggerated the title a bit, but it was a breakdown of the impending Obamacare decision in the Supreme Court: the players, the issues and, of course, the drama. Luckily, everyone’s speculation leading up to the verdict was completely upended by swingman Justice Anthony Kennedy’s opinion, which wrote off the law as constitutional under Congress’s ability to tax. So much for all of that.

But last Friday, the Supreme Court decided to hear the cases on Proposition 8 and the Defense of Marriage Act next year. A ruling against the former could eliminate gay marriage bans in thirty-one states across the country, solidifying the legal ramifications of a homosexual’s right to marriage. A ruling against the latter could lead to full marriage benefits for hundreds of thousands of gay couples.

Needless to say, we may need to give away the title of “The Most Epic, Monumental, Game-Changing Supreme Court Case In History” again.

Like most Supreme Court cases, it took quite a while for the cases to make it this far. Prop 8 banned constitutional marriage in California four years ago and, since then, an appeals case has fought its way up the legal ladder. And the Defense of Marriage Act was passed in 1996 under the Clinton administration. It’s faced a handful of appeals in the past sixteen years but the Justice Department, under President Obama’s discretion and a campaign promise he made in 2008, finally gave the legal challenge the last push it needed to land in front of the Nine.

The argument against the referendum has been push forth by Ted Olson and David Boies, the two lawyers who viciously fought each other in 2000’s Bush v. Gore — the decision that decided a Presidential election. Now, twelve years later, the two are on the same team and want this decision to be history in the making. When the announcement came on Friday, Olson was quoted as saying, “We are going to address all the issues, focused on the fundamental constitutional right to marry of all citizens.” To use an overused expression, these guys are in it to win it.

Now, the main conversation we will have regarding both case’s constitutional implications will focus on the Fourteenth Amendment. This is the one that federally guarantees equal protection under state laws; it’s the Amendment that brought down segregation, blocks on voting rights and even anti-abortion laws. Once again, it will be used to answer the question, “Do same-sex marriage couples have the rights to equal benefits?” and, as an outgrowth of that question, “Do same-sex couples have a Constitutional right to marriage?”

However, what is extremely rare about these two cases is the sheer lack of precedent involved in the legal spectrum of marriage. If the Supreme Court was to wipe the table clear of Prop 8 and DOMA, it would have to go against the only serious ruling it has used to defend constitutional bans thus far, Baker v. Nelson. In that case from 1972, a constitutional ban on same-sex marriage in Minnesota was deemed fit because it didn’t pose “a substantial federal question.” Fast-forward exactly forty years: a majority of Americans, and even the President, supports same-sex marriage. You’re damn right it poses a “substantial federal question” now.

Also, as much as our conversation about the Supreme Court is based on whose voting what, the attention this time should not be on swingman Justice Kennedy. Albeit an issue with major economic implications (read: absolute $ucce$$), same-sex marriage is whole-heartedly a social issue; therefore, the votes are completely up in the air. Although many argue the constitutional questions posed have to be answered by the highest court in the land to end, most of the Justices have not voiced their opinions on the matter. Except Justice Scalia – we know exactly how we feels about homosexual sodomy. Ugh.

The oral arguments for the case will begin in March and continue into April, with a decision happening some time in June, giving the media more than enough time to reel out their expectations and excitement. We’ll be there with them.

And, to reiterate a point made by fellow scribe and NYULocal Editor-in-Chief Zoe Schlanger, “Until then, watch this video of what it looked like the moment marriage equality passed in Maine.”

The countdown begins.

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