Friday, September 10, 2010

Legal Commentary: Gay Rights Quickie


What's amazing about that is that, after years and years of Federal courts punting on gay issues, Federal courts have, in the last few months, overruled:
  1. The Defense of Marriages Act
  2. Proposition 8
  3. Don't Ask Don't Tell
And because of the timing, all three cases will be appealed to the Supreme Court probably at very similar times. At this point, the Supreme Court is going to be forced to consider once and for all the very methodical case put forward by the Judge in Proposition 8: is discrimination of homosexuals in terms of family structure and employment in any way justified.

If the Supreme Court rules against homosexuality (see: Dredd Scott or Plessy v. Fergussen), it may be years and years before the High Court is willing to hear the issue again. Here is the fear: in a time where the Court leans 5-4 towards conservatism, the risk of temporarily crippling the advance of gay rights is enough to make me nervous.

On the other hand, the swing vote (Justice Kennedy) voted in favor of gay rights previously in Lawrence v. Texas; the opinion in the Prop 8 case was very, very stacked against the pro-discrimination group, and particularly used Scalia's words in that case to back up its decision. If the conservative-libertarian case for gay rights appeals to the conservative-libertarians on the court (we can write off Clarence Thomas...) then we could have a quick succession of highly important, nation-wide, unequivocal cases in favor of gay rights.

Stay tuned!

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