Thursday, May 24, 2012

A court in need of cover

A law professor named Mae Kuykendall from Michigan State writing in the NY Times proposes how the Supreme Court might dodge a bullet on gay marriage:

… there is a way. The Supreme Court, which will almost certainly have to take up the issue, should hold that while states may refuse to authorize same-sex marriages, they may not void — that is, refuse to recognize — gay marriages lawfully conducted in other states.

Yes, such a ruling would effectively make same-sex marriage legal throughout the country, because it would require Texas to recognize same-sex unions performed in Massachusetts. It would no doubt infuriate opponents.

But it would also be the best judicial solution. It would recognize the Supreme Court’s limited authority over marriage laws and leave it to state courts to resolve differences across states in areas like divorce, child custody and inheritance, as they have traditionally done.

I just don't see this flying.

I will make a prediction here: the Supremes will try very hard to find a way to thread the needle on gay marriage, somehow both allowing it and not imposing it. The Roberts court is very likely to be in need of showing that they are something more than partisan right wingers, bent on enacting a Republican agenda that hasn't won in the electorate. They have already tried to hand over our elections to their billionaire buddies with the Citizens United decision. If they find some wacko reason to invalidate the health care law duly legislated by majorities in Congress, they'll be visibly thumbing their noses at the democratic principle of majority rule. They are going to need a fig leaf, a display that they aren't just a thumb in the dike (figuratively) against the rushing torrent toward gay equality. Full civil rights for gay citizens are coming; some partial affirmation of marriage equality will offer the Court an some escape from historical odium -- and offer a lot of cover for many another tendentious decision.

For myself, Ms. Kuykendall's proposal seems to miss the main disabilities I suffer because I can't get married. Because of the federal law against recognizing gay unions (DOMA), I have to pay more and jump hoops in transitioning to Medicare. A heterosexual person covered by her/his spouse's health insurance can simply continue without penalty. I have to add Medicare Part B while continuing my existing insurance to avoid what amounts to a fine. (Maybe the zealots against the health law on the Supreme Court should look into that!)

And I haven't yet filed my taxes this year because the IRS requires extra joint returns (that they don't implement) from California (and some other states') domestic partners. We're still trying to figure it out.

All of that will go away when we get full marriage equality. That day can't come too soon!

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