It looks like were going to get an answer -- not necessarily a right answer -- this term on the constitutionality of traditional-marriage limitations in state law. With Justice Kennedy as the swing vote, upholding the limitations seems like a very long shot, but I can imagine a judicial finesse: something along the lines of, the limitations could be constitutional if the legislative rationale were such-and-such, so the limitations are invalid except in states that pass new laws embracing that rationale (which states with at least 70% of the countrys population wont do). That would leave the country with a patchwork, but so what? State taxation is a patchwork, capital punishment is a patchwork, public education is a patchwork, etc., and all of those arguably have more impact than formal legal recognition of what happens whether the law recognizes it or not. Im not betting on this, you understand; just noting the possibility. The interesting thing is that Republicans who care only about tactical implications are secretly hoping that the Court takes the issue off the table altogether by finding traditional-marriage limitations unconstitutional, and Democrats who care only about tactical implications are secretly hoping for some kind of a mixed ruling that will let them keep the pot boiling.
Posted on: Sat, 17 Jan 2015 03:51:40 +0000