It's not often that I agree with NOM's Maggie Gallagher, but I'll admit that I think she has a point in her analysis of the Supreme Court marriage equality cases.
Commenting on David Blankenhorn's Family Scholars site, Gallagher admits she thinks the Supremes will strike down DOMA as unconstitutional. She thinks anti-equality folks will win the Prop 8 case.
"To strike down Prop 8 on 'narrow grounds' proposed by the 9th Circuit is so intellectually dishonest that if that is what the Court wished to do I think they would have refused to hear the case. I think Kennedy will overturn DOMA (perhaps joined by Roberts) and then uphold the right of states to refuse to accept gay marriage (i.e. uphold Prop 8). The victories this November for gay marriage at the polls make that outcome more likely. Justice Kennedy will likely see it as not at all unlikely voters will overturn Prop 8 soon and see that as a much better outcome than constitutionalizing gay marriage."
Once the court announced they would hear both cases, this is where my thoughts flew too. The Supreme Court hasn't been a bastion of justice for LGBT people. While they overturned sodomy laws in the 90's, it was the second case brought before the court that finally got the laws overturned. Cases involving the Boy Scouts' and St. Patrick's Day organizers' ability to discriminate against our community have all been decided in favor of the anti-equality bigots. We've lost more often than we've won.
This gives the Justices a chance to play both sides of the fence. If they rule that section three of DOMA is unconstitutional, we win a major victory - but it doesn't strike down the whole law. The case is only focused on one small section of the law.
While people often say that the court doesn't want to overreach and cause more division like what happened after Roe v Wade, our recent ballot box victories can be both a positive and a negative. We can claim that the tide is turning and a decision in our favor won't cause widespread division that will last for decades, but the opposition can simultaneously claim that we are not a powerless group of individuals without access to political power. Our recent wins on marriage equality and the success of several openly lesbian and gay politicians, give the impression that we're not a minority group entitled to more scrutiny based off of our powerlessness.
By overturning the Prop 8 case - and allowing the amendment to stand as constitutional - but declaring section three of DOMA unconstitutional, the court can legitimately claim that they are standing firmly for states' rights and protecting the rights of a minority group.
(Agreement graphic via Bigstock)