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Maddow show guest: DOMA case ‘ingeniously crafted’ as states’ rights issue

By Samantha Kimmey
Friday, December 7, 2012 23:37 EDT
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On The Rachel Maddow show on Dec. 7, guest host Ezra Klein tracked the law on interracial marriage to draw comparisons to the current debate on same-sex marriage and how the Supreme Court may rule, now that it has decided to take two separate cases that deal with the issue.

Klein says that while the Supreme Court ruled that “separate but equal” unconstitutional in the 1954, it didn’t rule on interracial marriage until 1967.

In 1947, he goes on, most states banned interracial marriage; by 1967, only 16 did.

“The court was following on their heels,” he argues.

“This is a big debate in the legal world. Is the Supreme Court influenced by American public opinion? These are nine people who could very well ignore the will of the people. They’re appointed for life. There are no elections, no accountability.”

But, he went on, legal experts believe judges and justices are in fact swayed by public opinion.

The court will rule, likely in June, on California’s Prop 8, which defines marriage as between a man and a woman, and a separate case on the Defense of Marriage Act, which prohibits same-sex couples from receiving the same federal benefits that opposite-sex couples receive when married.

While only nine states and Washington, D.C. have legalized same-sex marriage, public opinion is shifting rapidly. Polls now find that more Americans support same-sex marriage than oppose it. Support among young adults is especially high.

“The court is choosing to rule now,” he said.

Guest Kenji Yoshino, a constitutional law professor at New York University, said many believed the court would decline to hear arguments on Prop 8, allowing same-sex marriage to become legal in California but nowhere else, and only years down the road rule more broadly.

He then said that ruling on the Defense of Marriage Act could let states decide whether to allow same-sex marriage, with couples in those states then able to access federal benefits.

“In some ways, the suit was very ingeniously crafted, because it’s a kind of pincers movement. The conservatives on the court tend to be very pro-states’ rights” while the liberals support same-sex rights.”

But, he went on, the Prop 8 case is more complicated.

“If the Supreme Court goes really broad on that and says there’s, for example, a fundamental right for same-sex couples to marry, that could flip the remaining 41 states that don’t have same-sex marriage to require them to have same-sex marriage. I don’t think that’s going to happen, Ezra.”

He theorized that one outcome of the Prop 8 case could be that the eight states that currently have civil unions would be required to recognize them as marriages.

He did say that the fact that there was a trial on Prop 8 helps same-sex marriage advocates. “In that case there is a beautiful record. There was a trial in this case. And whenever there’s a trial, the pro-gay side wins. That’s almost a per se rule.”

Watch the video, via MSNBC, below.

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