Saturday, January 17, 2015

And Now the U.S. Supreme Court: Lex Anteinternet: Today In Wyoming's History: Judge Skavdahl rules on same gender marriage

As I was sure would occur, when I wrote this some months ago, this issue is headed for the United States Supreme Court.
Lex Anteinternet: Today In Wyoming's History: Judge Skavdahl rules o...: A few days ago I wrote a post here about the history of marriage . Last Friday, one of the three Federal judges in Wyoming struck down Wyomi.
I knew that his would occur, it was inevitable. And while predicting a result now is hazardous, I strongly feel that we're very likely to get a four to five decision in this, but which four, and which five, is the question.  Hazarding a guess is indeed a hazard here, but I'll go ahead and do one.

The court, on marriage, has a very long history of regarding it as the exclusive domain of the States. Exclusive.  It feels different about interpersonal conduct, but in the regulation of marriage, the court has always viewed that, or nearly always, as a matter for the states.  

And the court has traditionally been very concerned about the image of the Federal Courts.  Indeed, while little appreciated, the Court has been aware of the degree to which Roe v. Wade tarnished its image because the legal reasoning and methodology in it was so poorly done, and the results were so widely unaccepted.  The Court tries not to go down that road, therefore, if it can.

For those reasons, I think the result will be that the Supreme Court will reverse the Circuit Courts that have found that same gender marriage is Constitutionally mandated.  It will have to do that for a variety of reasons.

First of all, the decisions simply fly in the face of prior Supreme Court decision, and its up to the Court to reverse itself, not the Circuits.  Beyond that, however, if the Court accepts the Circuit's decision, it knows that it is overthrowing the long held system under which the states, not the Federal government, regulate marriage, and the Court is unlikely to want to assume the role as the largest domestic relations court in the world.  The Circuit courts seemingly fail to grasp that stepping into this role does this, and soon Federal Courts will be addressing issues on plural marriage, divorce and any other number of domestic decisions it has heretofore been content to allow the states to handle.

Additionally, the various Circuit court decisions are poorly reasoned to a degree, and they smack of "me tooism".  That doesn't mean that a person has to disagree with the decisions to feel that.  The entire concept of there suddenly being a Constitutional right to something that nobody would have previously conceived of in our history is really suspect, and the Court in recent years has tried to avoid going in that direction.

It has done that in part as the Court's reputation did indeed suffer so much following the Roe era, and the Court knows that things that it foist on the nation tend to bring it into disrespect.  It also well knows that if a social movement is going to eventually convince the majority of Americans that a change in long held social views has arrived, it will arrive without the help of the Court.  The Court's safest major social decisions come when a majority of the population already feels the way the Court rules, making revolutionary decisions much less revolutionary than they really appear.

Of interest on this topic, the Wyoming Legislature is in session and there are presently two bills in the legislature seeking to afford protection to those who have moral objections to same gender marriage.So the topic is on the legislature's mind.  After the decision by Governor Mead to not appeal Judge Skavdahl's ruling in the Federal District Court for Wyoming he, that is Governor Mead, took quite a bit of heat from some of his fellow Republicans for that decision.  Indeed, some of the criticism was very pointed, causing Mead to actually have to defend his decision.  Now, with the U.S. Supreme Court having indicated it will take this issue up, and with the legislature in session, it's going to be inevitable, in my view, that Mead will receive pressure to submit an amicus brief in the Supreme Court action, or he'll really see revived heat about his failure to appeal, which in turn means that we have no real standing to get into this suit if we wish to.  My guess is that the Supreme Court would take amicus briefs (why not?) and that the State will take that action.

Be prepared for tons of really bad Court analysis.  One thing about the Court is that a lot of the Press seems to think that it operates like a state legislature and a lot of the public seems to think that it operates like a city council.  It doesn't. All the press about the public and the court, and politics and the court, etc, we can expect to see from now till July is largely way off the mark.  The Court does a better job in its role than people imagine, which means that it doesn't really worry that much about voting the popular way on any one thing.

As a final prediction on this, I think there's probably close to 0% chance that the utlimate ruling will be accurately reported on or grasped by the public, although some group will have a huge reaction no matter what.

For people who support same gender marriage, if they win (again, I doubt they will) the result will legally achieve what they're seeking, but that won't equate with social acceptance, at least not immediately.  The results of Roe v. Wade  are less accepted now than they were in 1973.  The nature of the debate just changes at that point, which is what will become apparently pretty quickly.

But if that same group looses, and I think it will, it won't be for the reason that most opponents of same gender marriage would argue for.  That is, the Court is extraordinary unlikely to rule that as a matter of natural law, marriage must be between different genders, which is what the real argument there amounts to.  That isn't going to happen.

Rather, the far more likely result will simply be that definition of marriage should be a matter of state law, and that the Court doesn't want to get into an argument about who can marry, how many people you can marry, what marriages a state must recognize as valid, what age you can marry, or any of that. That's the court's traditional position, and I suspect it'll be its position here.

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