SALON

Monday, Dec 10, 2012 2:02 PM UTC

Mixed feelings among gay marriage activists about SCOTUS decision

Only NOM is totally happy

By

Topics: Supreme Court, DoMA, Defense of Marriage Act, Proposition 8, Gay Marriage,

Mixed feelings among gay marriage activists about SCOTUS decision (Credit: AP Photo/Pablo Martinez Monsivais)

Though many gay marriage advocates cheered the Supreme Court’s decision to take up Proposition 8 and DOMA on Friday, a few were wary of the Court’s decision to hear both cases at once.

“There is no question that it is a risk,” said Gavin Newsom, California’s lieutenant governor, the Daily Intel reports. “If they nationalize it and reject it, that’s going to take decades to come back to the court.”

Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality, told HuffPo’s Lila Shapiro that because the lower court’s ruling on Proposition 8 was very narrow, she would have preferred if the Court just decided to take up DOMA. ”I’m not thrilled. I would have preferred they took the Windsor case alone.”

The National Organization for Marriage, on the other hand, thinks things are looking up. “I’m ecstatic,” Brian Brown, NOM’s president, told the New York Times. “Taking both cases at the same time exposes the hypocrisy on the other side.”

“We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said NOM Chairman John Eastman in a statement on Friday. “We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”

The Court’s orders give the justices a lot of wiggle room on the question of whether gay marriage should be legal. For one thing, the justices gave themselves a way out of ruling altogether through the question of standing.

In the orders released on Friday, the Court said it would first look at whether the supporters of Proposition 8, which banned same-sex marriages in California, had standing to bring the case. For DOMA, the Court will decide “whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” If not, the Court will not make a ruling on the merits of each case.

There is also the possibility that the Court could issue a split decision. From the New York Times:

The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.

And there are those outcomes that would not address the constitutionality of same-sex marriages as a whole. From the Times:

The justices could also affirm a California-only rationale relied on by the appeals court. That court said Proposition 8 must fall because voters had withdrawn a constitutional right from gay men and lesbians. Whether the establishment of such a right was required by the Constitution in the first place, it said, was a question for another day.

Finally, the justices could pursue what Kenji Yoshino, a law professor at New York University, calls the “eight-state solution,” one that would affect California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. Those states give gay and lesbian couples all the benefits and burdens of marriage but withhold the name “marriage.” That distinction, the court could rule, violates equal protection principles.

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at jrayfield@salon.com. More Jillian Rayfield.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 4 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

vote
New Yorker launches tool by Aaron Swartz to protect leaks: Strongbox, co-created by the late technologist, is an open-source drop box for leaked documents
195 points196 points | 7 comments
vote
New Yorker launches tool by Aaron Swartz to protect leaks: Strongbox, co-created by the persecuted late technologist, is an open-source drop box for leaked documents
142 points143 points | comment
vote
Obstruction will ruin the GOP: Playing politics and abusing the system can excite the extremes, but it's a recipe for long-term political disaster
45 points46 points | 8 comments
vote
Loaded terminology like "entitlements" and "welfare" skews the debate and alters America. How right-wingers use semantic tricks to kill government.
45 points46 points | 23 comments
vote
With the help of Photoshop, artist Yao Lu has made shanshui — traditional ink paintings — of China's landfills
22 points23 points | comment

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations