Bench Memos

Crashing Left

I have a lot of respect for Adam Liptak, the Supreme Court reporter for the New York Times, but his column today on the Supreme Court’s grant of review in the marriage cases is a hilarious example of the overwhelming media bias in favor of same-sex marriage. To extend the motoring metaphor of Liptak’s column title (“Same-Sex Issue Pushes Justices Into Overdrive”), I’d observe that Liptak has veered leftwards off the cliff:

1. By Liptak’s account, “the court gave itself the chance to issue a sweeping ruling that would cast aside bans on same-sex marriage nationwide,” but “also raised the possibility of a split decision, one that would provide federal benefits to same-sex couples married in states that allow such unions but would permit other states to forbid gay and lesbian couples from marrying.” Liptak even speculates that it’s that “possibility of a split decision” that had “supporters of traditional marriage sound[ing] pretty cheerful.”

Oddly, Liptak nowhere contemplates the third basic alternative, in which the Court rejects both the challenge to the Defense of Marriage Act and the challenge to Prop 8. As I’ve explained, the prospect of that alternative being realized is enhanced by the fact that the cases are being considered together, and it’s obviously that prospect that has supporters of traditional marriage happy with Friday’s action.

It’s a remarkable testament to the closed circles in which Liptak moves that someone as astute as he is would imagine that supporters of traditional marriage would be happy with a “split decision” that invalidates DOMA.

2. Liptak repeats the party line of same-sex marriage supporters that the Defense of Marriage Act case presents “the relatively modest question of whether the federal government can discriminate against same-sex couples married in the places that allow such unions” (emphasis added). Unless you get mired in confusion about federalism (see point 1 here), there is no reason to believe that the DOMA question is at all modest. Unless you contrive to slice the baloney awfully thin, the same misguided arguments that would lead to invalidation of DOMA would also lead to invention of a constitutional right to same-sex marriage. (I will develop this point more fully.)

3. On the standing question in the Prop 8 case, Liptak asserts that if Prop 8 proponents don’t have standing to appeal, “the trial court decision requiring the state to allow same-sex marriage would stand.” But as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago (when the issue first arose), a ruling that Prop 8’s proponents lack standing on appeal may instead compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety. 

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