In 1857, Chief Justice Roger Taney wrote for a 7-2 majority in the case of Dred Scott v. Sanford. The Taney court basically held that persons of African descent were not citizens of the United States under the Constitution.
Taney and his court will forever be remembered for that one case and for coming down on the wrong side of history.
This week the John Roberts United States Supreme Court heard two cases involving same sex marriage. Will the Roberts court come down on the right side of history, or will the Roberts court end up on the trash heap of history next to Roger Taney?
Public opinion has come a long way since Congress passed the Defense of Marriage Act (DOMA) in the mid 1990s. It has also come a long way since Karl Rove, et. al. decided to use gay marriage as a wedge issue in the 2004 Presidential campaign.
Public Opinion has changed dramatically
In 1996, only 27 percent believed that gay marriage should be legal. In 2004, about 33 percent believed gay marriage should be legal. A Washington Post poll conducted earlier this month showed that support for gay marriage had risen to 58 percent, with most recent polling showing support for gay marriage above 50 percent.
What is even more compelling is the fact that the generational divide on this issue is enormous. Where the Washington Post poll showed that only 44 percent of respondents over 65 supported gay marriage, the number swelled to 70 percent in the 18 to 39 demographic and 81 percent in the 18 to 29 demographic.
The two major reasons for this change are that younger people tend to know a gay or lesbian friend or family member, and thus they are more accepting. This can be attributed to the fact that most gay and lesbian people don't hide the fact that they are gay or lesbian anymore. To put it simple, they are no longer "in the closet."
The other reason is that as states pass same sex marriage laws, people have come to realize that the gay couple who got married down the street are going to destroy traditional marriage between a man and woman like we were all lead to believe by the opponents of gay marriage.
Buzz and I never understood this argument, and as people really began to think about the issue of same sex marriage, they came to the same conclusion. The fact that two lesbians get married doesn't effect anyone's "traditional marriage" in the least bit.
Two same sex marriage cases were heard this week
The Roberts Court heard arguments on whether California's Proposition 8 (outlawing gay marriage) should be upheld. It's really a moot point, because if Proposition 8 were revisited by California voters in 2013, it would be soundly defeated. This fact only may persuade the court to punt this case on some procedural ground.
DOMA may face a similar fate. Questions have been raised as to whether the Court has jurisdiction to hear the matter. The Supreme Court throughout the years has been happy to boot a case and not come to a decision on the merits, especially if the justices are divided. They can at least come to an agreement not to make a decision.
Veteran court watchers believe that five justices (including the "swing justice" Anthony Kennedy) have serious doubts about DOMA. The only question that remains is whether those five justices will pen a broad decision holding that marriage is a fundamental right available to all citizens, whether gay or straight, or will the court toss out DOMA on some less dramatic grounds.
The Court could also decide the Proposition 8 case on broad or narrow grounds.
Will the decisions to strike be 5 to 4 or 6 to 3?
What Buzz and I find particularly intriguing is where will the Chief Justice land. As we saw in the case upholding Obamacare, the CJ was quite cognizant of his role in history when he jumped sides and penned the majority opinion. Will Roberts do the same thing with regard to gay marriage.
If Kennedy leads a five justice majority in either of these cases, he will by virtue of his seniority decide who writes the majority opinion. He can take it himself or assign it to another justice. We believe he will keep both of these if he is the fifth vote. This all changes if Roberts comes down on the side of same sex marriage.
If Roberts is in the majority, he by virtue of being the CJ will decide who writes the majority opinion. Buzz and I would not be surprised if he does. Roberts does not want to spend eternity next to his former fellow Chief Justice Roger "African=Americans are property" Taney.
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