After sitting in on the landmark arguments Tuesday (March 26) and Wednesday (March 27), Family Research Council (FRC) lawyer Ken Klukowski said he is "fairly optimistic" the justices will support the right of states to continue to define marriage. The federal government's authority to define marriage, however, is an "uphill battle" at the high court, he said.
Associate Justice Anthony Kennedy will be the swing vote in both debates over the constitutionality of government definitions of marriage, Klukowski predicted.
The Supreme Court heard arguments Tuesday on a challenge to Proposition 8, a 2008 California voter initiative that defined marriage as only between a man and a woman. On Wednesday, the justices considered the 1996 Defense of Marriage Act (DOMA), which used the same definition for federal purposes.
Regarding Prop 8 and the possibility of a sweeping decision by the justices for nationwide gay marriage, Klukowski said he is "fairly optimistic that the court is going to correctly say that there is no invisible, previously unnoticed federal constitutional right to gay marriage whereby the people of the 50 states cannot vote on the issue."
If the justices come to that conclusion, Prop 8 will stand, and similar decisions by states will as well.
"Everyone acknowledges marriage doesn't show up once in the Constitution," Klukowski told Baptist Press Thursday. "The only question is whether it's an implied right that does not allow any of the 50 states to have any laws saying marriage is one man and one woman, that gay marriage is a federal right that all states must embrace and must do so now. It did not look like to me that there were five votes for that at the Supreme Court."
In the Prop 8 case, "what will weigh more heavily on" Kennedy is his belief "this is an issue better left to the democratic process and that the federal Constitution does not include any empowerment to authorize unelected federal judges to shut down democracy on this issue and just declare a national, constitutional right," said Klukowski, director of FRC's Center for Religious Liberty.
Kennedy seemed drawn, however, in the arguments over DOMA to the view that a federal definition of marriage would interfere with the sovereignty of the states, Klukowski said. There are more than 1,100 federal provisions based on the traditional definition of marriage, including employee, Social Security and tax benefits.
During the DOMA back-and-forth, Kennedy "appeared to be only talking about federalism as a one-way street, not a two-way street," Klukowski said. Federalism is essentially the division of power between different levels of government.
However the states define marriage, Kennedy appeared to signal the "federal government must cater to the states to provide benefit to whoever the state tells them is married, that the federal government cannot have its own separate definition," said the FRC lawyer, whose organization filed friend-of-the-court briefs in support of both Prop 8 and DOMA. "So that is the issue will stand or fall on."
The odds are "not strongly against" a favorable ruling on DOMA, Klukowski told BP, "but I think it's an uphill climb" for DOMA to "survive on the merits."
While he predicted Kennedy will be the swing vote either way in 5-4 votes in both rulings on constitutionality, Chief Justice John Roberts will be the deciding vote on the procedural issues in both cases, Klukowski forecast.
The justices could refuse to rule on constitutional grounds in both cases by deciding they should not be before the high court.
In the Prop 8 case, the court heard arguments on whether the initiative's supporters had legal standing to appeal a lower court ruling when state government officials, including the governor and attorney general, refused to do so.
One of the procedural issues weighed by justices in the DOMA appeal was whether the House of Representatives leadership had standing to defend DOMA after President Obama's administration refused to advocate for it.
The high court is likely to say Prop 8 advocates can defend the amendment in court, Klukowski said, although he acknowledged a "realistic chance" it may not. Regarding DOMA's technical questions, however, he placed 50-50 odds on the justices throwing the case out.
Regarding DOMA, the Supreme Court heard arguments only on the law's Section 3, which defines marriage as a heterosexual union and prohibits the federal government from recognizing same-sex marriages. DOMA's Section 2, which was not challenged in this case, authorizes states to refuse to recognize gay marriages performed in states where such unions are legal. DOMA received overwhelming approval from Congress and was signed into law by President Clinton, who recently said he now opposes the measure.
Lower courts struck down both Prop 8 and DOMA, prompting appeals by their advocates to the high court.
While both sides in the marriage debate focused their interests on the Supreme Court, gay marriage was a hot topic on social media, too, with both sides speaking up.
A pink and red "equality" symbol by the Human Rights Campaign quickly became popular among gay marriage supporters on Facebook and Twitter, with Facebook fans "liking" it and some social media users even replacing their picture with it. HRC's symbol normally is yellow and blue.
Traditional marriage supporters responded with their own logo. FRC promoted one showing a man and woman holding hands, while the National Organization for Marriage released one showing a man, woman and child. Both became popular among social conservatives on Facebook and Twitter.
Nine states have legalized same-sex marriage: Connecticut; Iowa; Maine; Maryland; Massachusetts; New Hampshire; New York; Washington; and Vermont. Gay marriage also is legal in the District of Columbia.
The Prop 8 case is Hollingsworth v. Perry. The DOMA case is United States v. Windsor.
The court is expected to issue rulings in both cases in June.
Tom Strode is Washington bureau chief for Baptist Press.
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