DC at Night

DC at Night

Wednesday, March 27, 2013

Supreme Court Takes on Same Sex Marriage - Day 2

While no one knows how the Supreme Court will rule on the 2 cases involving same-sex marriage it heard this week, it seems gay marriage will eventually become the law of the land no matter how the 9 justices decide in those cases. At least that was the consensus of a prestigious 3-member panel of experts which discussed the controversial issue today at the Cato Institute.

In fact, one of the participants in the especially timely talk entitled Law, Politics, and Same-Sex Marriage actually arrived at the event directly from the Supreme Court, where he had been listening to oral arguments just moments earlier.

"I guess if there were ever a good reason for being late this was it," joked attorney Ilya Shapiro, senior fellow at Cato's Center for Constitutional Studies who presided over the institute's legal brief submitted to the Supreme Court in support of same-sex marriage.

Shapiro was joined by 2 of that nation's best-known advocates on the issue - Evan Wolfson, founder and executive director of Freedom to Marry, who is widely seen as the major strategist behind the movement for same-sex marriage and former Republican National Committee Chairman Ken Mehlman, a key figure pushing Republican rethinking on the topic.

Although much of the discussion focused on the constitutional challenge of the Defense of Marriage Act (DOMA) which was heard today, the panel also shared opinions on the challenge to California's Proposition 8 ban on gay marriage.

"The jurisdictional arguments (today) made my head hurt and this opinion is worth exactly what you paid for it (the CATO program was free), but it seems like DOMA is not long for this world," Shapiro said, explaining that although reasons might differ, he believes Justice Anthony Kennedy will join with the 4 more liberal justices - Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in ruling against the law.

Wolfson indicated he was optimistic that the court might find in favor of gay marriage, but he said his group will continue "doing what we have been doing - winning more states and winning more hearts and minds."

"Clearly we have the momentum," Wolfson, who had to leave the panel early to discuss the issue on Fox News, said. Polls now show that for the 1st time in history more than 50% of  American people favor same-sex marriages.

Mehlman believes that the belief change, in large part, is coming about because same-sex couples have "so galvanized the public with their stories." He said "the public sees folks trying to do the right thing and they are punished for it."

"It's no longer a concept about those people. It's now a concept about my people. It's happening to their children, to their friends, to their neighbors," Mehlman maintained.

Shapiro said the issue facing the court is clearly constitutional in nature. "A marriage license is different than a morality issue," he said. "It's a question of treating different people differently under the law. For example either California is violating the law or it is not violating the law."

But while the legal arguments may be so complex they can make even a well-trained constitutional  lawyer's head hurt, the essence of the issue is simple - fairness, Wolfson contends.  "We should have what you (heterosexuals) have," he said.

Tales, Tips, and Tidbits
The 2 days of oral arguments before the 9 justices have been completed. The protesters outside the Supreme Court have finished making their message known with signs, speeches, and singing. People, some of whom began camping out last Thursday to get inside the court and hear at least some of the proceedings, have packed up the make-shift tents and sleeping bags and returned home. So what happens next? This article, which you can access by clicking here, attempts to answer that question.

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