I haven't posted on the Sotomayor hearings because I've been watching with a mix of ennui and anger as a bunch of racist bullies call a latina woman a racist bully, feign interest in strict interpretation of the law only to criticize her because they don't like the outcomes of her decisions, and talk down to her as if their conservative political ideology should be a substitute for considering the law. Lindsay Graham's little scold session was particularly harsh, but then I guess that's what happens when politically impotent Senate Republicans are charged with determining the qualifications for someone who's far more qualified for her job than they are for theirs and will end up being more powerful than they are.
Anyway, they ended up talking about same-sex marriage when Chuck Grassley (who, out of pure, random chance, is up for reelection in 2010 in Iowa) brought up Baker v. Nelson, aka the controlling precedent on whether the 14th Amendment guarantees a right to marry the consenting adult of one's choice.
Video and more after the jump.
Oh, Senator. I have no idea why she was able to comment on Roe but not on Baker. Could it have anything to do with the fact that the former is arguably the most controversial and most discussed Supreme Court case of the 20th century that keeps on appearing in Supreme Court decisions while the latter is a rather obscure Minnesota State Supreme Court case that's technically controlling precedent but hasn't really been cited at the Supreme Court because it dealt with a type of case that hasn't come back? Sorry she didn't study up on the one federal case that deals with the issue you plan to fundraise off of next year.
It'll be interesting to read her opinion on the matter. The Baker decision famously said that Loving v. Virginia doesn't apply to same-sex marriage and that same-sex marriage bans don't violate the US Constitution:
The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment./4/
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/"
Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
(And for those people who still don't think that going to the Supreme Court and losing won't hurt anything, Baker was cited as controlling precedent on the 14th Amendment and same-sex marriage in cases ruling against marriage in New York, Washington, Indiana, and Nebraska.)
Of course, the fact that it's precedent doesn't mean that it's written in stone. And that was written in 1971 - a lot's changed since then. I'd be interested to hear what she has to say considering the DOMA challenges and the Prop 8 challenge working their way through the system. Although I highly doubt that, just before the confirmation vote, she's going to say: "Baker is bullshit!"
Update: HRC has video of Sotomayor being asked by John Cornyn about marriage. Love the "I'm not asking you to prejudge this case, but can you tell me what you think about this hypothetical future case?"
So she'll approach it "with an open mind." Thank you very much.
Here's Lindsay Graham, talking down to her again asking her if she's heard of the Full Faith and Credit Clause. Yeah, bozo, she was a federal judge before you were even in the House moralizing about Bill Clinton's blow job. I think she's heard of various exceptions to the Full Faith and Credit Clause.