Kevork Djansezian/Getty ImagesThe Supreme Court heard the first of two significant cases involving gay marriage Tuesday, with the oral arguments over the constitutionality of California’s Proposition 8 ban on gay marriage.
Thanks in no small part to the way in which public opinion has shifted on the issue of gay marriage, many gay-rights advocates believe the Supreme Court could strike down both Proposition 8 and the federal defence of Marriage Act.
But another argument, first advanced by GOP strategist Karl Rove on ABC’s “This Week” on Sunday, is that the Supreme Court could punt on making a sweeping decision and leave same-sex marriage up to individual states to decide. His argument was supported Tuesday by some of the justices who appeared to be flirting with the idea of throwing out the case on Prop. 8, leaving same-sex marriage to be decided on a state-by-state basis.
On Sunday, Rove said in a roundtable discussion that he could see a Republican presidential candidate backing same-sex marriage in 2016. But he wasn’t as bullish on the outcome of the two gay marriage cases, pointing to comments from liberal-leaning Justice Ruth Bader Ginsburg as evidence the Supreme Court might refrain from sweeping decisions.
Last year during a symposium at Columbia University, Ginsburg questioned the timing of the court’s ruling on another controversial social issue, abortion, which her predecessors decided on the court decided in the 1973 Roe v. Wade case.
“It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg said at the symposium.
On Sunday, Rove and panelist Peggy Noonan, a conservative columnist from the Wall Street Journal, thought it was a significant admission from one of the court’s most liberal judges. They surmised she might have tipped her hand toward how she might rule on another social case with wide-ranging implications, such as gay marriage.
“One of the things that I like, by the way, about a compromise in which state by state does it, it’s not only localities and keeping power local, it also takes a little time,” Noonan said. “Sometimes it’s good when everything takes a little time to settle itself.
“May I note by the way, Ruth Bader Ginsburg, a famous court liberal, her acknowledging very recently … that the Rove Versus Wade decision, the abortion decision, had gone too far and was an overreach. That is an epic statement from an American liberal left jurist,” she added.
Rove agreed, saying that the court could air overwhelmingly on the side of caution.
“And maybe should not have imposed one national view from the court,” Rove said of Ginsburg’s thinking. “And what we may see is a decision here that in essence has not a 5-4 decision, but a 6-3, 7-2 that says leave it up to the states. In fact, we could see an 8-1.”
After oral arguments Tuesday, SCOTUS blog went further, predicting that the court would punt on the case, leaving the 9th Circuit Court of Appeals ruling that struck down Prop. 8 in place.
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