Same-Sex Marriage, Drugs & Politics: Your Vote Doesn't Count?

Same-Sex Marriage, Drugs & Politics: Your Vote Doesn't Count?

Alright, you got me; they'll be no talk of drugs in this blog post - Sex, Drugs and Politics was a name of a really cool class I had in college. This is somewhat off topic for a criminal law blog but interesting nevertheless. The very legal procedure and intensive division amongst voters on same-sex marriage in our country has drawn the national spotlight. I'm actually neutral on what the outcome of this issue ought to be, if that's possible. However, the American voters are not.

I scoured the web for a quick (completely unscientific) synapsis of what's going on in America with same-sex marriage. Constitutional provisions in 28 states have been passed banning same-sex marriage over the past 10 years or so. The latest state to pass a constitutional ban is North Carolina. This issue is on the November ballot, in one form or another, in four states this year: Washington; Maryland; Minnesota; and Maine. Whatever the form of the question in these initiatives, the main issue is whether voters want to allow same-sex couples to marry in their state?

Alright, here's the really cool part: from a legal standpoint the results from these initiatives MAY not matter, IF the United States Supreme Court (SCOTUS) decides to hear one of two cases this term. In one case, a federal appeals court in San Francisco struck down California's Proposition 8. In the other case, a federal appeals court in Boston found the Defense of Marriage Act unconstitutional. Now, if SCOTUS takes these cases, they will have to decide whether the US Constitution will or will not protect the rights of same-sex people to marry. So, all of those voters in the states I mentioned above are wasting their time casting a vote on this issue, right? Ummm…maybe wasting a vote, I mean?

Okay, what am I talking about? Well, SCOTUS employs (as do other courts) the practice of judicial review, right? Remember social studies class? It's the process where the legislative and executive branches are kept in check by the judiciary reviewing the laws to see if they pass constitutional muster. The will of the majority can be invalidated by the court; if that will is unconstitutional (e.g. Jim Crow laws, etc.). In theory, the "will" of the voters and judicial review operate completely separate from one another. In other words, what's popular will not come into play when SCOTUS reviews whether or not the Constitution protects the rights of same-sex couples to marry. This has not always been the case when it comes to SCOTUS. Arguably, the Court has been swayed by popular opinion on several landmark cases (this is a major topic for a book, let alone a blog post). I understand that this premise is rather important for me not to back it up with some cases but you will have to trust me on this one – or post and prove me wrong.

In any event, I believe SCOTUS will hear one of the two (or both) mentioned cases this term. I also think that whatever the consensus of opinion among the four states that are voting on the same-sex marriage issue this November will be a good predictor of what the Supreme Court's decision will be on same-sex marriage. This will be the case even more so, if these democratic based states vote against same-sex marriage. It remains to be seen. I am really looking forward to the November results and the new term for the Supreme Court. So, stay tuned.

So with that said, every vote counts…right?