It's always dangerous to read too much into oral arguments at the Supreme Court. You can certainly get a general sense of which way the justices are leaning by the tone of their questions, but it's also easy to be misled, particularly when the case in question affords them a number of options for a ruling. So it was in today's case testing the constitutionality of Proposition 8, the California initiative banning same-sex marriage in the state. Justice Anthony Kennedy, the presumed swing vote, spoke in rather emotional terms about the "40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
Does that mean he'll join with the Court's liberals to vote to strike down the law? Who knows, particularly when striking down the law would be an undeniably radical step, invalidating laws against marriage equality in dozens of states. For that matter, we can't even be sure that all the liberal justices would strike down Prop 8.
Tom Goldstein of SCOTUSBlog suggests that the Court may not be able to garner a five-member majority for any ruling at all, in which case the appeals court ruling invalidating Prop 8 would stand. If nothing else, that would save California the trouble and expense of another initiative campaign, which advocates of marriage equality would almost certainly win next time around. And in the long run, it could be the best (non)ruling in this case. More and more states will legalize same-sex marriage in the coming years, public opinion will continue to move in the direction of support for equality, and in few years, a different Court will declare all laws like Prop 8 unconstitutional. It would not be surprising if Kennedy and the other Justices decided that that outcome is inevitable, and declined to push too far ahead of it.
And if Kennedy still wants to give those children a voice, he has another opportunity in the case the justices will be hearing tomorrow, on the Defense of Marriage Act.
So They Say
"Dear Scalia: YOLO."
— A sign outside of the Supreme Court this morning
Daily Meme: All Aboard!
- In anticipation of the major attention marriage equality will receive, politicians have been announcing their last-minute support for gay marriage while the issue is still hip and edgy.
- Rob Portman got the bandwagon moving last week when he announced his change of tune on same-sex marriage, prompted by his son's coming out.
- Moderate Senator Claire McCaskill followed, with the Missouri Democrat announcing her support on Tumblr to reinforce the Internet cred she earned with#scaliaweirdhat. However, she failed to use any GIFs.
- By this point, politicians were announcing their support like people filing taxes the day before April 15. As Mother Jones' Tim Murphy put it yesterday, "Just remember the deadline for 'I've evolved on gay marriage' statements is *tonight* at midnight, EST."
- Hillary Clinton announced her evolution on marriage in a video for the Human Rights Campaign, joining her husband in supporting the cause. The guy who signed DOMA is no longer for it? Kind of a big deal.
- Virginia Senator Mark Warner and Alaska Senator Mark Begich both made the deadline, barely.
- Jon Tester, the Montana senator, announced his support this afternoon, fashionably late.
- So ... what does this all mean? It's not like these politicians are at the vanguard—the Democratic Party added same-sex marriage to the platform last fall, and the public has majority support for the issue.
- In short, all these politicos coming out for gay marriage are behind the times. Don't expect the floodgates to close any time soon.
- On the other hand, don't expect everyone to jump on the gay marriage train while the issue's still hot. Jeb Bush, potential 2016er, is sticking to President Obama's old state-by-state gospel.
What We're Writing
- Monica Potts comes to us with another eye-opening article on poverty, this time focusing on middle-class families left homeless by the recession and stranded in a Ramada Inn.
- Abby Rapoport reports that marijuana legalization is gathering legislative momentum in several states.
What We're Reading
- Antonin Scalia, the most sinisterly named of all our Supremes, has had more than his fair share to say about gay marriage, pretty much all of it reprehensible. Here are some high(low?)lights.
- Obama has the choice between two new FCC heads—one a big telecom lobbyist and fundraiser for the president, and the other a dedicated wonk and advocate of web freedom. We don't imagine this will turn out well.
- Breitbart and the Daily Caller aren't quite news outlets, per se, but Salon is still offering them advice: If you don't want to be seen as racist, probably don't treat the first family like a bunch of racists.
- An as-yet unnamed player in the NFL is considering blitzing his way out of the closet sometime soon.
- Homeland Security head Janet Napolitano says that she likes phones and doesn't use email, but we'll forgive her for that, because immigration reform finally looks possible.
- In what may—let's hope—become a national trend, crotchety and boring neighbors look to be dealt a blow in D.C., where their "no more bars" agenda isn't finding traction.
Poll of the Day
Public Policy Polling went to South Carolina, and its 1st Congressional District special election in May looks like a close one. It's also interesting, you'll recall, because it's between Stephen Colbert's sister and (most likely) Mark Sanford, the former governor of Appalachian Trail notoriety. Elizabeth Colbert Busch leads Sanford 47-45, within the margin of error.
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