Rubio: Federal Marriage Amendment "Steps on the Rights of States"

[politicallefty]

The FMA would have had trouble passing in 1994 when DOMA was adopted; it has zero chance of passing now.

An amendment to enable state choice as to whether same-sex marriage would be permitted probably could have passed in 1994, but it too has zero chance of passing now.  (It probably could pass even now if only a simple majority of both houses were needed.)

Gonna be interesting to read Kennedy's opinion on that issue when DOMA's overturned (I'm guessing he'll be given the duty).

I'm not certain it will be overturned.  It could be, but I don't see Kennedy as being a sure vote for overturning.  It's also possible that it'll be a decision that narrowly strips the Federal government of the power of deciding what a marriage is and leaves the larger issue of whether there is a constitutional right to same-sex marriage for another day.

Personally I think such a narrow decision would be bad, since the Federal government should not be bound to the definitions of the State governments (or vice versa) and such an attempt at moderate heroism would have repercussions far beyond the field of matrimony.  A simple decision either affirming or rejecting a constitutional right to same-sex marriage would be much preferable, and also what I expect the court to issue.

I have almost no doubt a modified marriage amendment would have passed in the 90's (i.e. leaving the definition of marriage to the states entirely). There's no chance of that happening today, or anything remotely like it.

Even if you don't think DOMA will be the vehicle through which SCOTUS settles the marriage issue, what are your thoughts on the Prop 8 case? Unless the Court settles that on standing issues, that seems to be the more likely route through which nationwide gay marriage takes hold. The very fact that the case has even been taken up leads me to believe that it's probably going to be decided on the merits. Olson and Boies are going all the way on this argument. They're going for the full 50-state ruling on marriage equality. If anyone can grasp the ideology of the right-wing on the Court, it's definitely Ted Olson. Ultimately, the gay marriage issue seems to hinge on what Justice Kennedy is willing to do.

[politicallefty]

If the court was hearing Walker's trial decision, then Hollingsworth v. Perry would have much more potential to be the game changer same-sex marriage advocates hope for.  However, the court is hearing Reinhardt's far narrower appellate decision. If upheld as is, it could well simply end the civil union / marriage distinction in those states that have what is essentially same-sex marriage in everything but name.  (Those states are California, Delaware, Hawaii, Illinois, New Jersey, Rhode Island, and possibly Nevada and Oregon. I'm uncertain if what the last two have is effectively same-sex marriage in everything but name or not.)  It would also effectively strike down the state constitutional provisions in Alaska, Colorado, Mississippi, Missouri, Montana, and Tennessee that prohibit same-sex marriage but allow for the state to adopt same-sex marriage in all but name, but only in that it would free those state governments to adopt same-sex marriage, but it would not require them to.  Those states that have broader constitutional or statutory restrictions on same-sex relationships would still have them under a Supreme Court ruling that narrowly upholds Reinhardt's decision.

That seems to me like a very odd and convoluted decision, although it would be an interesting decision to see them tackle the civil union/marriage issue. I don't necessarily accept the premise that the Court is only looking at the specific California situation. They could have easily let the Ninth Circuit's decision stand, which would have been completely justified in light of Romer. I can't see them taking the case up only to simply affirm the lower court. On the other hand, I also cannot see Justice Kennedy upholding Prop 8. Mostly, I'm puzzled as to why the Supreme Court is taking up this case at all, unless it wants to make a broader ruling in support marriage equality. The standing issue only turns Prop 8 from a substantive strike-down to a procedural one (which would mean Walker's ruling takes effect in California). The Ninth Circuit's decision is not likely to constrain the Supreme Court's options, especially when you consider that Olson and Boies are going to push for a 50-state ruling. That is a different strategy compared with their narrower argument at the circuit court. Why else would the opponents of Prop 8 try to make that case at SCOTUS?