DOMA and Gay Marriage: Supreme Court Path to LGBT Equality is Long, Complex

The recent arrival of eight marriage equality cases at the U.S. Supreme Court won’t be the quick fix that many people assume, because LGBT rights remain a contentious, intricate topic in 31 states through nine ballot measures, 19 federal laws, 30 state laws, and 40 lawsuits.

Unlike candidates seeking election, or laws being written in legislatures, lawsuits are deliberated in secret (except when the lawyers present their points in person). Beyond filing a friend-of-the-court brief, activists and the general public can’t influence the outcome of the 40 state and federal lawsuits that now have been brought to trial courts, appellate courts, state supreme courts, and the U.S. Supreme Court. Therefore, until decisions appear, there’s nothing that the public needs to know, because there’s nothing that the public is permitted to do. No one is allowed to influence any court. Even the current and next presidents will play no role, and the justices won’t let them.

LGBT citizens will have to re-focus their efforts only after most of these 40 cases are permanently resolved, especially since decisions on complex matters from higher courts are often neither all-up nor all-down decisions, but compromises with courts granting some points to each side. After the winning and losing points are known in each case, only then can activists choose which goals they’ll resume pursuing versus which successes they’ll be celebrating.

The Supreme Court justices do care what the public thinks, but not for the same career-related reasons that politicians and government bureaucrats do. The justices care because any ruling that’s unenforceable is worthless, and so they try not to get too far ahead of society at large.

When the U.S. Supreme Court de-criminalized same-gender sexual relations between consenting adults, Justices Antonin Scalia, Clarence Thomas, and William Rehnquist objected, because that decision also de-criminalized same-gender marriage, thus opening the door to allowing it later on.  In their 2003 dissent, what they wrote said, in effect, that LGBT people are not entitled to equal protection, that LGBT people have no fundamental right to a sex life, and that government should continue classifying LGBT people as criminals. Out of laughable ignorance, they also wrote that legalizing same-gender sexual relations makes it difficult to keep masturbation a criminal act. But there was no such thing as keeping masturbation a crime, because no one had even made it a crime. That fear — like their others — was illogical, unnecessary, and imaginary.

Justices Scalia and Thomas are still members of the court. In the intervening years, they have not shown any improvement in their points of view, which resemble those of Justices John Roberts and Samuel Alito. These four justices threaten LGBT citizens in two ways. 

Firstly, the four of them could vote to accept a case that LGBT plaintiffs have already won, and then try to overturn it. Secondly, if just one of the other five justices joins these four in a decision, then those five could re-criminalize LGBT people just for having a sex life, for forming a same-gender marriage, or for pursuing some other fundamental right which everyone else takes for granted. Those five could outlaw masturbation — for everybody — as two of them wrote back in 2003.

In 1958, 63% of the states outlawed interracial marriage, and 98% of the population opposed it.  But many more Americans favor equality in 2012 than did so in 1967: 54% support same-gender marriage today, whereas only 2% supported interracial marriage four decades ago.  Since the U.S. Supreme Court overturned laws prohibiting interracial marriage in 1967, it certainly should be able to overturn laws prohibiting same-gender marriage today. Likewise, the Court struck down separate-but-equal public schools in 1954, so it should have no difficulty striking down separate-but-equal marriage laws like civil unions and domestic partnerships today.

The bad news is that if the Court does accept one of these cases, and then rules against equality instead of for it, decades could pass before there’s any possibility of reversing that outcome.

The good news is that all of the marriage-related cases now seeking space on the Supreme Court docket have stellar track records, as do the vast majority of cases still working their way through the lower courts.

Nevertheless, the current Republican-controlled House of Representatives has already spent millions of dollars on fourteen separate cases, trying to ensure that current laws which discriminate against LGBT people (e.g., the 1996 Defense-of-Marriage Act) will survive all lawsuits and remain on the books. So far, those Republican efforts have done nothing but waste taxpayer dollars and lose in the courtrooms. And the new, four-year Republican platform is the most homophobic in the nation’s history, including a vow to amend the U.S. Constitution to permanently oppress LGBT people in ways that no court could overturn. Aside from what the courts may eventually do over the next few years, any federal legislation for marriage equality will require a Democratic Congress, and a president to match.

Each marriage-related case is unique, although 7 of the 8 cases now seeking U.S. Supreme Court review share two common questions. Firstly, among the four judicial tests — rational basis, intensified scrutiny, heightened scrutiny, or strict scrutiny — which test should be used to decide the constitutionality of laws that discriminate based on sexual orientation/identity? Secondly, is the 1972 ruling which declared that one-man-one-woman marriage laws were constitutional still valid today?

All 8 cases now seeking review at the U.S. Supreme Court have already been decided in at least one lower court. Overall, those decisions are likely to remain in effect, because the only way they could change is if the Court chooses to review a case, and then also rules differently or instructs a lower court to proceed differently, which happens in less than 1% of the cases.

When it comes to marriage equality at the U.S. Supreme Court, reporting the news alone is difficult, as shown in the mistakes being made even by major networks

CNN incorrectly wrote that California’s same-gender marriage ban is a law, but it’s not a law; it’s a prohibition written into the state constitution by the voters via ballot. In the same article, CNN reported that Court decisions about which marriage rulings will be upheld versus which will get reviewed could start being announced as early as September 25, 2012.

But over 10,000 cases seek reviews each term, and about 9,900 of those get denied, so when justices choose which cases to take, it’s most efficient and logical to consider all similar cases at one time.  Since some marriage cases won’t even finish getting fully filed for another two months, the decisions to accept or reject various cases are more likely to be published in batches through January. None have been announced yet, despite the “any moment now” expectations from activists and reporters alike.

CNN also  wrote that California’s marriage ban was ruled unconstitutional in August 2012. That’s also incorrect. The federal district court in San Francisco first ruled on August 4, 2010, and the 9th Circuit Court of Appeals in San Francisco upheld that decision on February 7, 2012. All rulings in August 2012 were made in other marriage cases.

Finally, many news outlets keep predicting that decisions from the Supreme Court’s new term will be rendered “by June.” But that’s one month too early, and 30 days too vague. All of the court’s decisions for this term will be delivered by the first of July 2013, not the first of June; decisions can be announced any time up to and including June 30th.

Full equality for LGBT people will eventually arrive, but Republican legislators and socially conservative judges want to postpone it as long as possible. That day is still a long way off.


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Ned Flaherty

Project Manager for Marriage Equality USA.

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