Sunday, March 24, 2013

NYTimes outlines all possible outcomes from Supreme Court cases to be argued this week

An article in the Sunday New York Times by Adam Liptak, “Shadow of Roe v. Wade looks over two cases on same-sex marriage”, needs to be saved because of a very instructive chart on p. 16 of the National Section.  The link is here
You need to click on a second link (on the left), “Howthe Court Could Rule on Same-sSex Marriage:, to see what looks like a Microsoft Powerpoint presentation of Visio diagram.  The direct link is here
I would be inclined to doubt that the Supreme Court would rule that governments cannot define marriage as opposite-sex relationships only pm equal protection grounds.  But it may rule more narrowly, as the chart shows, in such a manner that gay marriage must remain legal in California or that the plaintiff in DOMA (Edith Windsor) can collect a judgment.  It seems unlikely that states that do not want to will be forced to accept same-sex marriage.

Interesting is the idea relationships cannot constitutionally be called “civil unions” if they have all the rights of “marriage”.  (Virginia tried to preclude even this possibility with Marshall-Newman, but the idea could backfire.) 

It is true that DOMA can run into serious constitutional questions in the way it evades the "Full Faith and Credit Clause".   

What seems important to me is not just the constitutional argument, but the practical one.  If you recognize certain sexual relationships as privileged in the law, then inevitably there will occur situations, hard to anticipate and nuanced, where people who did not enter such relationships are practically forced to sacrifice to subsidize the relations or families of people who did.  That may include the children being raised by same-sex couples. 
It has always struck me that “fair” or “equitable” public policy would recognize a relationship only when there is someone who is actually financially dependent.  That is, families take care of “their own” rather than depending on government.  If two adults are married, there is no benefit unless one of them is dependent (which could come if one loses a job).  However there is a benefit once a female in a relationship is pregnant – an unborn child is considered a dependent.   There is also a benefit if an elderly parent or disabled adult family member is being supported.  That’s the concept that seems “fair”.  

Today, CNN presented a lesbian couple, legally married in Washington DC, one of whom is an airman, and the other is a DC police officer.  The military member had to name her spouse as a "sister" to provide "next of kin" notification.  

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