“Sotomayor pledges an 'open mind' on same-sex marriage lawsuits” (Bay Area Reporter, SF GLBT News)

[jody]

Sotomayor pledges an 'open mind' on same-sex marriage lawsuits

U.S. Supreme Court nominee Sonia Sotomayor was grilled twice on how she might rule should a same-sex marriage case come before her on the high court - and, both times, she carefully eschewed answering. But there was at least a hint in her responses that she is not yet convinced that a 1972 same-sex marriage case has already settled the question.

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"If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage," he said, "would that be making the law or would that be interpreting the law?"

Sotomayor declined to venture an answer, saying she thought any answer would constitute an impression that she has made a pre-judgment on a same-sex marriage case.

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"If it is the court's precedent," she said, "... I will apply that precedent to the facts of any new situation that implicates it." She said she expects that, whenever a marriage case comes to the high court, one side will argue that Baker is precedent and the other side will argue the opposite.

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"As I indicated yesterday," said Sotomayor, "I will follow precedent according to the doctrine of stare decisis. I can't prejudge what the precedent means in the issue {or} what a prior decision of the court means and its applicability to a particular issue until that question is before me as a judge or a justice, if that should happen."

Has any Senator asked Sotomayor specific questions about CA Atty. Gen. Brown’s argument on Prop 8 that same-sex marriage is an “inalienable right” under CA’s Constitution and if so whether that right would then be protected as an unenumerated right under the 9th Amendment to our Constitution and possibly thus incorporated in the 14th Amendment?

Obviously Stomayor should not and would not answer those questions but it would at least plant the seed for and encourage open debate on the topic particularly when IMO CA's Supreme Court dismissed Brown's argument without properly considering it.