This guest post is provided courtesy of my husband Peter, a social studies/math teacher at a charter high school in Central California. He is in his 18th year of teaching in both public and private schools in Texas, Arizona, and California; he is also in his third official year of homeschooling. He is a lifelong Catholic, and a talented mineral collector and family historian/genealogist.
The analysts at Fox News seem inclined to believe, based on the questions asked by the SCOTUS justices today, that the Court will issue a narrow ruling on Proposition 8, but these are the same analysts who thought that the Court would overturn the individual health insurance mandate last summer based on the tenor of the questions that the justices asked at that time. I don’t believe we can tell much at all from today’s arguments. I would suggest, however, that last June’s ruling on the health insurance mandate might be a clue here. In that case, the Court upheld the mandate, according to the majority opinion, on the basis of the federal government’s power to tax. However, I tend to agree with those who say that this was a pretext, a line of reasoning that did not really reflect what Justice Roberts and perhaps some others really were thinking in ruling the way that they did. My suspicion is that they didn’t want to be responsible for overturning what appeared to be the will of the majority on such a controversial issue, much as a referee doesn’t really wish to be the person who decides the outcome of a game, preferring to let the players do so instead. As the Court saw it, the voters had expressed their will by electing Obama and a Democratic Congress into office, and they could, if they chose, overturn the mandate by electing the GOP into office in 2012. I suspect that at least some of the key justices will see this issue in the same way. Rather than act as the “deciders” on such a controversial issue, they may likely choose to take the same route – letting the voters decide – as they did on the mandate issue. This would mean, of course, keeping the gay marriage issue as one that is determined on a state-by-state basis. This, of course, would be a significant defeat for proponents of legalized gay marriage (not necessarily a permanent one), but its opponents wouldn’t be able to claim all that much victory in that situation either.