Going to be an interesting week for the Court. They are having hearings now on both DOMA and California’s same sex marriage ban. We won’t know their decision for a while. My guess is that they will strike down parts of DOMA and possibly California’s amendment but on very narrow grounds that fall short of declaring a “right” to marriage. That would be my preferred outcome at this stage. I would prefer that this issue not be resolved by the Court. And given the dramatic shifts in opinion — Mark Warner and Claire McCaskill just changed their positions and a new poll shows majority support in Ohio — I suspect the gay marriage proponents will get what they want through the democratic process very soon. By the time the 2020’s roll around, I expect gay marriage to be legal in a majority of states no matter what the Supreme Court says.
The more interesting ruling came today in Florida v. Jardines. This is case where a “drug-sniffing dog” was brought onto someone’s porch without a warrant and his subsequent alert used as probable cause. There wasn’t much hope for this since the Court decided earlier this year, unanimously, that drug-sniffing dogs constitute an infallible drug detection mechanism and therefore their use does not constitute a search. This, despite overwhelming evidence that drug-sniffing dogs are anything but infallible and often simply reinforce the predisposition of their handlers.
But the Court ruled in favor of Jardines on privacy and trespass grounds. This will prevent blind searches of people’s homes using the dogs so it’s at least something. Interesting, supposed fascists Thomas and Scalia decided with the majority while supposed liberals Kennedy and Breyer were with the minority.
The Court has been chipping away at our Fourth Amendment rights for some time. It’s nice to see the brakes applied or once.