SCOTUS Arguments on Proposition 8

By Attorney Gregg Herman
March 26, 2013

While I haven’t had a chance to listen to the arguments in the Proposition 8 case heard by the United States Supreme Court today, the summary by Tom Goldstein in his blog makes the most sense to me.

While predicting any court has never been my strong suit, it’s difficult for me to see the court going way out on a limb and finding a constitutional right to marry for same-sex couples.

Especially, when they don’t have to – for two reasons.  First, many states are enacting such rights on their own.  Second, for the remaining states, public opinion is clearly swinging in that direction.

So why should the Supreme Court, the least democratic of the three branches of government, mandate what seems to be happening anyway?

As a family law attorney, of course, I am strongly in favor a same-sex marriage for business purposes – the more marriages, the more divorces.

And as a moderate conservative/libertarian, I’m in favor as I don’t see an overriding state interest in interfering with the choices of two consenting adults.

Still, I think the SCOTUS will mostly punt on this one.  And given the way the winds are blowing, that’s not necessarily the wrong decision.

One side comment:  While the arguments were audio taped, they really should be  televised.  No, they will not steal rating points from “Dancing with the Star,”  (unless John Roberts starts dancing…) these arguments show the law at its most majestic – really smart people discussing public policy and how the law should influence it.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.