March 25, 2013

I Guess We'll Soon Find Out

Ten months ago, Chief Justice John Roberts shocked the nation by first finding that ObamaCare was unconstitutional under the Commerce clause -- but then ruling that it was nevertheless constitutional under a "new construction," by which its enforcement mechanism was deemed a tax: Thus ObamaCare was allowed under the federal government's taxing power. Heavy, man.

Roberts explained that he labored to find a way to uphold ObamaCare because he wanted to give all possible deference to to the "democratic" organs of government, in this case the administration of Barack "Skeets" Obama. (Though it's a tough play to argue that an act democratically voted upon, but whose purpose is to crush democracy, is actually a "democratic" act. It's kind of like tolerating the intolerant, no?)

Roberts also fretted about "predictability" and "stability," as well as inter-governmental harmony. Too, he didn't want to create law, so he had to find any constitutional excuse, however convoluted or implausible, to uphold a law that was duly enacted by Congress.

Flash forward to tomorrow, when the Chief Justice and the other eight robed masters will hear oral arguments on the Defense of Marriage Act and on California's Proposition 8:

• The Defense of Marriage Act, or DOMA, was democratically enacted in September of 1996; it has remained on the books for the last seventeen years despite repeated efforts to repeal or gut it. It confines marriage, for federal purposes, to a union between one man and one woman and protects states that do not recognize same-sex marriage (SSM) from having to recognize SSMs performed in other states. Despite numerous federal challenges over the years, the Supreme Court has so far refrained from striking DOMA down.
• Proposition 8 was a vote to rebuke the California Supreme Court, which struck down the original version of the same law, Proposition 22; its operative clause reads, in its entirety, "Only marriage between a man and a woman is valid or recognized in California."

Prop 22 passed back in March of 2000. The citizen initiative was approved by a margin of 61.4% to 38.6%. The California Supreme Court subsequently struck down the initiative, ruling that the California state constitution -- which does not mention same-sex marriage at all -- actually mandates it. (Perhaps I should have used a different word than "mandate.")

As quickly as possible, the same fourteen-word initiative was relaunched as an initiative constitutional amendment; despite being on the same ballot as Barack Obama's 2008 election -- a banner year for Democrats! -- and despite shenanigans by state officials, who tarred it with the tendentious and risible title, "Eliminates Rights of Same-Sex Couples to Marry" (as if that was a traditional right of long standing, enshrined in our hearts, and a vital part of the golden thread of Western civilization), the traditional-marriage amendment won again, this time by 52.2% to 47.8%... not bad, considering the headwinds in this second liberal landslide. ("The headwinds of a landslide" is almost as good as "the foothills of the headlands.")

After it passed the second time, a single federal judge, Vaughn R. Walker -- who was secretly in a long-term gay relationship himself, thus standing to benefit from his own decision -- struck down Prop 8, declaring that the United States Constitution, as written in 1787 and amended various times since, in fact mandates requires same-sex marriage.

These cases hand us the perfect shibboleth to tell whether Roberts spoke true as he upheld ObamaCare: that he only wanted to show deference to democratic votes, maintain settled law, and refrain from making new law. Here we have two bills, both democratically voted: one by Congress confining SSM to states that have actually approved SSM, the other enacted by a more direct democracy, the people of California voting (twice!) to restrict marriage to opposite-sex couples.

Each of these democratic laws has been settled law for some time: In DOMA's case, seventeen years; in Prop 8's case, California has never recognized SSM except for the brief period between the California Supreme Court striking down Prop 22 and the passage of Prop 8... and even that was due to a panel of judges, not a vote of the people or the legislature!

Additionally, the Supreme Court has had many previous opportunities to strike down DOMA, yet failed to do so; and the citizens of the Golden Leaden State have repeatedly voted against SSM and in favor of tradtional marriage every chance they have had -- more than twice, as pro-SSM initiatives were also shot down several times. Thus stability and predictability are on the side of traditional-marriage.

So if Roberts finds a way to land on the leftist side this time, he has no excuse, no explanation, no justification other than the obvious: He will have "grown in office," and we must then consider him a full-fledged Obamunist. To strike down either of these two laws, Roberts must contradict every principle he claimed anent ObamaCare.

But I take the optimistic side; I think Roberts will vote to uphold both. I also believe, contra several mordant and pessimistic conservative commentators, that both will be upheld by the Court by a (suprise!) 5-4 decision; that is, I believe Justice Anthony Kennedy will join the four conservative justices -- Roberts (let us hope), Antonin Scalia, Clarence Thomas, and Samuel Alito -- in holding that the U.S. Constitution does not demand that all states immediately implement same-sex marriage, per the express understanding of the Founding Fathers and Mothers.

But whether my prediction eventuates or goes awry, we'll soon discover the answer to the burning question of whether CJ Roberts was giving us the truth -- or giving us the business.

Hatched by Dafydd on this day, March 25, 2013, at the time of 3:29 PM

Comments

The following hissed in response by: Chris Balsz

The above hissed in response by: Chris Balsz at March 27, 2013 12:25 AM

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