Gay Marriage Cases

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The United States Supreme Court has oral arguments scheduled for Tuesday and Wednesday for cases that could lead to a landmark decision on gay marriage. ASU Law Professor Paul Bender will discuss the cases.

Ted Simons: The U.S. Supreme Court this week heard oral arguments on two same-sex marriage cases that have the potential to result in landmark rulings. Here with analysis of what happened this week is ASU law professor Paul Bender. Always a pleasure. Good to see.

Paul Bender: You same here, Ted.

Ted Simons: Talk about, what happened this week with both of these bills, both of these cases and how they could impact Arizona.

Paul Bender: Well, yeah, I think that's worth talking about at the beginning. The only way these cases will impact Arizona is if the court were to hold that it is unconstitutional for any state to ban gay marriage. That is the broadest holding. And the attack on the California statute. That of course if the court did that, that would strike down the Arizona constitutional provision which says marriage in Arizona is between one man and one woman. If they don't do that, it will have no impact on Arizona at all. Because -- Well, because if they hold the California proposition unconstitutional, on narrow grounds, which is what the ninth circuit can, that is grounds only applied to call and maybe a couple other states that have very broad civil unions. So that wouldn't matter. If they uphold the California proposition, that won't have any impact on Arizona because the California proposition says you can't have gay marriage in Arizona. The New York case, the federal statute which was argued today has no impact on Arizona because the question there is in a state that legalizes gay marriage, is it constitutional for the federal government to treat Gay married people as unmarried for federal purposes? And so that doesn't impact Arizona because in Arizona gay marriage is not legal. And if the court in the California case should hold that gay marriage has to be made legal, then that will make marriage legal in Arizona and federal benefits go to those people anyway.

Ted Simons: Let's separate the cases quarterbackingly if we can. California's prop was the focus yesterday. It sounded like the arguments were interesting to the point to where some of the justices were wondering, what the heck they were arguing about.

Paul Bender: Well, yeah. I think what's going on there is the court does not -- The majority of the court does not want to issue a broad decision in that case. If forced to decide on the merits whether a state can ban gay marriage, I think that five people on the court would say no, they cannot. That Kennedy would join the liberals on the court to say that's a violation of the equal protection clause. He doesn't want to do that. He would rather not do that now. He would rather leave it up to the Democratic process. But if he's forced to do it, I cannot see him joining an opinion which says that it is constitutional to ban gay marriage. Because that would put it solidly in the constitution. For the foreseeable future. And I don't think he wants to do that, because I think he thinks the world is moving in that direction. So they're looking for a way to get out of it, having taken it, and he in fact suggested yesterday, why do we take this case? Maybe we ought to get rid of it, and they can dismiss it. The problem is, that if they do that, they leave the ninth circuit decision standing, which holds the California statute unconstitutional. And the conservatives on the court don't want to do that, because they don't like the ninth circuit, they don't like the opinion. They want to get rid of it. So if they do that, then they're going to -- They could hold there's no controversy in this case because the government of California thinks that the California proposition is unconstitutional, and the challengers think it's unconstitutional, so the people who are trying to push the constitutionality, there's a question whether they have standing to do that. So if you say, they don't have standing to do that, then do you back to the district court, which held the California proposition unconstitutional. So I don't think the conservatives on the court want to do that either. So they have a real dilemma as to what to do with the thing.

Ted Simons: Kennedy is the key here?

Paul Bender: Kennedy is the key, yeah. I think there are four people on the court who would vote to say that banning gay marriage violates the equal protection clause. And I think if he were forced to vote on that issue he would agree. He's been the leader on the court on Gay rights.

Ted Simons: An interesting quote, I'm not sure we should be doing this, was when he feared the court was entering, quote, uncharted waters. I think for those who are looking at this from a distance, they think that's what the court is supposed to do.

Paul Bender: Yes. But the court has -- This is not new. The court often lagging behind, and waits to see whether there is a groundswell going in a certain direction. And then will join in. The court did not hold segregated schools unconstitutional when it first realized they were unconstitutional. Which was certainly the beginning of the s. They decided to hold a series of cases specifically about, you can't could this, you can't do that, for particular reasons. And finally in they got around to it. When everybody by that time knew it was unconstitutional. The same thing with abortion. The court didn't jump in and say abortion statutes were unconstitutional early on. New York was changing its law, in fact in the case Roe v. Wade, Texas was changing it to make it easier to get an abortion and the court said, you had to make it a lot easier. So the court waits for things to develop. Maybe that's not principled of them, but that's what they do.

Ted Simons: It's interesting to hear that. You think of them sequestered and they're not supposed to be looking at public --

Paul Bender: you know they do look at that. And they don't want to lose the confidence of the public by seeming to go way out ahead. They would rather do it when it's generally acceptable. And so you say, why do they take that case? They took that case because the ninth circuit held California statute unconstitutional. And they thought we've got to take that because the ninth circuit has done something wrong, because it's always doing something wrong. If the ninth circuit had upheld the statute would it have taken the case. So they sort of trapped themselves.

Ted Simons: OK. So that's the California prop case. That was before the court yesterday. Now we've got this federal defense of marriage act before the court today. What kind of arguments did we hear?

Paul Bender: The statute says that federal benefits which go to married people, as you must know there's a whole range of them, I think somebody said a thousand federal statutes dealing with benefits or detriments married people have, the federal defense of marriage act says you're only married for the purposes of federal law if you're a one man and one woman couple. A Gay couples are not married for purposes of federal law. And the question is whether that's constitutional. The case involves a woman who lived with another woman and they were finally married in Canada, and they came back to New York and New York recognized their marriage and then one of them died, leaving a considerable estate to the other. If they're married for purposes of federal law, the estate tax deduction, exemption. And she would have to pay -- The surviving partner would pay no estate tax. If they're not married, then it's about $300,000 in estate tax that she has to owe. So she doesn't think she ought to have to pay that. That is complicated because she sued to get the money back. She had to pay it and she's suing for a refund. The federal government said, we're not going to defend this statute in court because we think it's unconstitutional. But we're going to continue to enforce it. So we're not going to give you your money back but if you sue us we'll tell everybody you're right. That creates a real problem for the court. Because they say the federal government is not defending its own statute. Why is there a case before it?

Ted Simons: Right.

Paul Bender: Why isn't the federal government just give her the money back, because they think she has a right to it? And that's a big problem. So the court could use that as an excuse, a reason not to decide that -- Not to decide that case.

Ted Simons: A couple of punts possible?

Paul Bender: At least a couple. Probably more than that. And so in these -- These are really interesting cases to show this point. You don't know whether these are important cases or not until you read the opinions. These could be bombshells, or they could be basically nothing. And it depends upon how the court -- How that goes depends on what they can get five people to agree on.

Ted Simons: Does it also, chief justice Roberts, how much of a factor -- We always hear how much of a legacy he wants to leave, he wants to be a uniter, is that a factor here at all? What he sees as the court's, I don't know --

Paul Bender: He does haven't any special power on the court as chief justice. The only powers he has are he can assign the cases when he's in the majority. Otherwise it's the senior justice in the majority who signs the case. That is something of power. But his vote isn't worth any more than anybody else's. I think people thought after he voted to uphold Obamacare last June that that was a statesman like thing, he was trying to avoid being caught in a controversy. These cases and a couple of other cases the court has this term are going to indicate to me whether he really is turning into a statesman or whether he isn't -- This is a perfect example. He could try to maneuver things here by the way -- By the way he signs the cases to make sure the court is doing acceptable as possible to the public. Or he could vote to say it's perfectly constitutional to ban gay marriage. Which would be quite a strong revolutionary sort of thing which would cause a lot of controversy. So it will give him an opportunity to try to play the statesman's role if he wants to do that.

Ted Simons: How unusual to have these two cases back-to-back such big cases, California being challenged, and California's not even represented -- Doesn't even want to represent itself. The U.S. doesn't even want to represent -- that's got to be unusual.

Paul Bender: It is very unusual. You have the government of California disavowing a California constitutional provision, and you have the government of the United States disavowing a federal statute. That causes problems for a court.

Ted Simons: I'll bet it does. That makes for a good for us having you on to explain it. Thanks so much for joining us.

Ted Simons: State lawmakers are considering a bill that would give tax credits to insurance companies that invest in certain Arizona high-tech ventures. Here to talk about the bill and the state of Arizona's high-tech sector is Steve Zylstra, president and CEO of the Arizona technology council. Good to see you again.

Steve Zylstra: Thanks, Ted.

Paul Bender:Law Professor, ASU;

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