while i'm glad the obama administration filed its brief in the proposition 8 case, i find its reasoning to be a little bizarre. if the court adopts its view, bans on gay marriage would be unconstitutional only in states that also allow gays to have civil unions with some of the rights of marriage. that would take away any incentive for a state where the population is on the fence about gay marriage to adopt a civil union compromise and will probably leave gays with no partnership rights in those states.
so marriage rights would become and all-or-nothing thing. each state would get to decide whether to give gay people the full right to marry, including calling it "marriage," or giving them no legal recognition at all as a couple. that's going to have real-world consequences for a lot of people. in a more conservative state that hasn't garnered enough political support for full marriage rights, it means that gay people might not have the right to visit their partner in the hospital, they are not going to be able to adopt, etc. on a political level it would close the door to an incremental approach towards acceptance of gay marriage, the approach that has been followed nationally for the past two decades: first giving gay people some rights of marriage and then working to extend the partnership rights until it becomes the whole thing. if the court accepted the administrations all-or-nothing argument that wouldn't work anymore, and, i suspect, a lot of states would choose nothing.
i haven't looked in detail into the justice's individual records on this issue or counted the votes, but my spitball impression is that there's a fair chance that the court might ultimately adopt the administration's view. it has elements that the court likes. the ruling would get nifty labels like "landmark" and "historic." it would be heralded as proof that the court is consistent with the times. at the same time, it would also preserves some degree of choice for states.
so marriage rights would become and all-or-nothing thing. each state would get to decide whether to give gay people the full right to marry, including calling it "marriage," or giving them no legal recognition at all as a couple. that's going to have real-world consequences for a lot of people. in a more conservative state that hasn't garnered enough political support for full marriage rights, it means that gay people might not have the right to visit their partner in the hospital, they are not going to be able to adopt, etc. on a political level it would close the door to an incremental approach towards acceptance of gay marriage, the approach that has been followed nationally for the past two decades: first giving gay people some rights of marriage and then working to extend the partnership rights until it becomes the whole thing. if the court accepted the administrations all-or-nothing argument that wouldn't work anymore, and, i suspect, a lot of states would choose nothing.
i haven't looked in detail into the justice's individual records on this issue or counted the votes, but my spitball impression is that there's a fair chance that the court might ultimately adopt the administration's view. it has elements that the court likes. the ruling would get nifty labels like "landmark" and "historic." it would be heralded as proof that the court is consistent with the times. at the same time, it would also preserves some degree of choice for states.
