Law with Ginsburg, Breyer, and Thomas: What the Court Means to the LGBT Community

 Ladies, gentlemen, variations thereof, and none of the above, the day is upon us. For months the LGBT community has been preparing for this week. The Supreme Court of the United States has heard its first oral arguments in the case of Hollingsworth v Perry, the case that challenges Proposition 8, California's ban on same-sex marriage. While the decision will have far ranging impacts, the real show begins tomorrow with United States v. Windsor, the case challenging the Defense of Marriage Act which forbids married gay couples from recieving federal benefits. Implications of both these cases after the break

First, the cultural/political context of the Court. The Supreme Court is supposed to be the last bastion of cold, bloodless logic in American politics. The SCOTUS is incredibly powerful, having judicial review, or the ability to discern whether a particular law is constitutional or not. If they find a law to be contrary to the Constitution, then it is null and void. No legislative or executive body in America can just overturn a law like that. Ideally, the Court is supposed to step in and arbitrate egregious state or federal meddling in the constitutional rights of its citizens. The nine justices of the Court are appointed for life by the president and are ranked by seniority, except for the Chief Justice who is always the senior member.

Many criticize the Supreme Court's use of this power. For example, decisions such as Roe v Wade and Lawrence v Texas appeal to a "right to privacy" that isn't technically in the Constitution. I bring this up to illustrate that while one side might be obviously right or wrong, there has to be constitutional room for that argument. Also worth nothing is that while the justices are not supposed to be affiliated with any particular party, they are grouped into "conservative", "liberal", and "moderate", depending supposedly on their judicial philosophy. We'll get to why that's not quite accurate in a minute.

Black is very slimming. (Wikimedia Commons)

The nine Supreme Court justices are Chief Justice John Roberts, Justice Anthony Kennedy, Justice Anthony Scalia, Justice Clarence Thomas,  Justice Ruth Bader Ginsberg, Justice Stephen Breyer, Justice Samuel Alito, Justice Sonia Sotomayor, and Justice Elena Kagan. 

Most politically savvy Americans are pretty familiar with the political leanings of the justices. Sotomayor, Kagan, Ginsburg, and Breyer are the "liberal" justices, Alito, Scalia, Thomas, and Roberts are the "conservatives", and Kennedy is the moderate wildcard who is often the one who breaks close cases. It's important to note that liberal and conservative here are supposed to represent a judicial, and not a political view. "Liberal" judges generally are loose constructionists who tend to want to update the Constitution with rights that supposedly are in the spirit of the Founders' intentions, i.e. a "right to privacy" that didn't exist before. "Conservative" judges are supposed to be strict constructionists who value as little judicial interference as possible and read the Constitution verbatim. Moderates go either way, understanding that the Constitution was intended to be flexible but you can't just make shit up. I say supposedly because "liberal" judges tend to be politically liberal and vice versa. Also, some justices that profess support for as little court intervention as possible tend to throw that principle out the window if it's something they care about.

Picture of Antonin Scalia offered without comment.

What does this have to do with Hollingsworth v Perry and US v Windsor? Everything! Other than the wildcard-ish Kennedy and (to a small extent) Roberts, most of the judges are pretty predictable. Scalia and Alito would rather gnaw  their own arms off than rule in favor of anything resembling progress, and Thomas just wants to be cool like Antonin, so they'll try to find Prop 8 unconstitutional and will try to save DOMA. Interestingly enough, the short-haired, unmarried, softball-playing, Ivy League Kagan was  alleged to be a lesbian during her confirmation. Whether or not that's true, she will probably rule along with Sotomayor and Breyer to find Prop 8 unconstitutional and strike down DOMA. While Roberts broke party lines to affirm the constitutionality of the Affordable Care Act, he seems to be in favor of Prop 8. This leaves Kennedy as the tie-breaker, as usual.

But wait! There's more! According to this nifty little graph by the New York Times, SCOTUS could choose to kick it back to the lower courts. Justice Sotomayor seemed to favor this outcome, perhaps keeping in mind that a majority of Americans now support gay marriage. Generally the Court isn't supposed to stand in the way of democracy, and this helps maintain the Court's appearance of non-partisan neutrality.

Don't go just yet! A large part of Hollingsworth is going to be not how the Court rules, but why. If the court rules that Prop 8 is unconstitutional because the lower court had already found gay marriage constitutional, the effects remain confined to California. Californian gays and lesbians can get married. BUT if the court strikes down Prop 8 because it's not fair to offer civil unions to gay people as a lesser form of marriage (the separate but equal argument), then eight states will be forced to offer gay marriage. If the Court decides that all bans on gay marriage violate the Constitution, 37 states with a ban on gay marriage will be forced to overturn said bans. 

Windsor, however, will be the same no matter what justification is used. It will not open up gay marriage in any state that doesn't have it BUT it means that same-sex spouses are entitled to the same financial benefits that straight spouses are (military benefits, government pension and healthcare,...) because those rights are denied in every state, even the ones with gay marriage thanks to DOMA.

I hope this little crash course in the Supreme Court didn't put anyone to sleep. Keep your fingers crossed!

And hope that one of Kennedy's kids comes out as gay.