After years at the center of America’s fiercest culture war, California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) will have their day in court — the U.S. Supreme Court, that is. Oral arguments are set for Tuesday and Wednesday of this week, marking the high court’s first direct stab at the question of same-sex marriage in the United States.
At stake are over a thousand federal rights and privileges such as hospital visitation and special tax status, not to mention the larger matters of civil rights and the meaning of "marriage" itself. Activists and interest groups on both sides of the issue have mobilized ahead of what will surely be landmark rulings, but in many respects the decisions have already been made.
For those unaware, the measures at issue are deeply divisive with complicated legal backgrounds. What would eventually become Proposition 8 began after the California Supreme Court ruled that the state constitution demanded legalized same-sex marriage. The decision rallied conservatives and religious groups, culminating in a ballot question during the 2008 elections to amend the California constitution and define marriage as solely between one man and one woman. In a final tally that stunned onlookers nationwide, proposition backers claimed victory 52-48%.
The Proposition 8 case now on appeal to the Supreme Court, Hollingsworth v. Perry, only complicates the situation. U.S. District Court Judge Vaughn Walker first invalidated the amendment in late 2010, a decision backed (albeit on narrower constitutional grounds) by a 2-1 vote at the Ninth Circuit Court of Appeals. Of course, neither may count for much in Washington. Judge Walker is himself a gay man in a committed relationship, and while his ruling was cleared of any potential bias by the Ninth Circuit, that court is without doubt the nation’s most liberal.
Arguably of greater consequence is United States v. Windsor, the DOMA case now before the Supreme Court. Signed into law by President Clinton in 1996, the Defense of Marriage Act defined marriage as a legal union between one man and one woman for the purposes of the federal government (Section 3). Under the law, no state or other American jurisdiction is required to recognize a same-sex marriage ordained in another state or foreign country (Section 2). With both houses of Congress under Republican control, DOMA passed with overwhelming, veto-proof support.
That the Supreme Court granted review of Windsor is interesting, though not for any reason LGBT and civil rights groups would cheer. Eight federal courts have ruled DOMA’s Section 3 unconstitutional for a variety of reasons, with Windsor easily the weakest candidate. Why? First is the question of standing, or whether a party has the legal right to participate in a given case.
Here things get tricky. The president having refused to defend DOMA in court, the federal government is currently represented by the congressional Bipartisan Legal Advisory Group (BLAG), while Windsor originally filed suit alleging an unfair tax code as applied to homosexual couples. BLAG’s participation raises separation of power concerns (constitutionally, the executive is responsible for legal enforcement; BLAG is a legislative entity), and the Supreme Court has never favored the notion that mere taxpayer status alone confers legal standing. A committed Court majority could dismiss the case for lack of standing to save a controversial decision for calmer political times.
That question aside, Windsor remains a relatively poor vehicle for advocates of marriage equality to plead their case. The Second Circuit Court of Appeals held that homosexuals are a quasi-suspect class deserving of heightened judicial scrutiny — a question expertly sidestepped in the last SCOTUS decision concerning the treatment of homosexuals, Romer v. Evans. The modern Court’s conservative majority may be unwilling to extend such protections to America’s LGBT community, and the Second Circuit may have itself overreached in attempting to reclassify an entire population. That has always been the province of the nine Supreme Court justices.
Truthfully, neither case’s procedural quirks may matter in the long run. Such impediments have never prevented a determined Court from ruling on issues it believes critical. Consider Bush v. Gore, when the majority authored an unsigned decision interpreting Florida’s state constitution to end the 2000 presidential election. Or the recent decision upholding the Affordable Care Act ("Obamacare") despite the Anti-Injunction Act of 1867, which states that no suit may challenge the validity of a tax until it is first collected. That same decision reclassified the Obamacare insurance penalty as a tax.
Should the Court hear and decide each case in full, there are important clues to keep in mind. The four liberal justices (Ginsberg, Breyer, Sotomayor, and Kagan) are guaranteed votes against, while conservatives Thomas and Scalia boast records suggesting votes to uphold. Fellow conservatives Alito and Chief Justice Roberts are harder to read, though the Chief has been vocal in his belief that "the way to stop discrimination … is to stop discriminating." In fairness, that statement concerned race alone.
If the Court breaks four apiece, the swing vote could fall to Justice Anthony Kennedy. Though nominally a conservative, Kennedy has emerged as the modern Court’s leading voice for LGBT rights. He penned the aforementioned Romer decision barring governments from denying legal protections purely on the basis of sexual orientation, laying the groundwork for his landmark opinion in Lawrence v. Texas striking down anti-sodomy laws nationwide. Coupled with the 1967 Loving v. Virginia declaration that marriage represents a "fundamental right of man" not to be denied for reasons of bigotry or spite, the path forward seems clear enough.
Of course, the Roberts Court has shelved longstanding judicial precedent before. Kennedy himself joined the Citizens United decision invalidating federal campaign finance law despite decades of existing case law in its favor. Given Proposition 8′s striking similarities to the Colorado measure at issue in Romer — a state constitutional amendment believed to legitimize anti-gay discrimination — it’s probable that Kennedy will follow Judge Walker’s conclusion that it cannot stand. He has at least four liberals waiting to join him, and potentially a conservative or two looking to defend stare decisis (precedent).
The Defense of Marriage Act, on the other hand, may well survive this first round before the Court. The procedural issues undermine its standing and threaten a narrow ruling tailored to Edith Windsor’s specific circumstances. Worse for civil rights activists, the Second Circuit invoked the Fifth Amendment’s guarantee of equal protection rather than the ironclad Equal Protection Clause of the Fourteenth Amendment. It’s a significantly weaker case, something the justices must have recognized when selecting it over a far stronger example like the First Circuit’s Massachusetts v. U.S. Department of Health and Human Services.
While activists would relish DOMA’s demise, it’s unlikely the Windsor decision would legalize same-sex marriage nationwide. More likely, the Court would strike DOMA to return the definition of marriage to the states. On the other hand, Proposition 8's defeat may invalidate the gay marriage bans in force in thirty-nine states. Of the two, that would represent the greater victory for advocates of marriage equality.
Frustrating though it is, there’s really no way to know ahead of time. The Supreme Court should issue its Hollingsworth and Windsor decisions come summer, likely igniting a national political firestorm. Expect the LGBT culture war to go nuclear when they arrive. But if history teaches anything, it’s that society trends toward greater acceptance of all things. With a growing majority behind them, civil rights activists certainly have time and demographics on their side.
The "traditional" and "moral" rhetoric deployed today echoes forth from the shameful fight against interracial marriage, without which the sitting President of the United States could not have been born. Whatever the Court decides, it’s difficult to imagine a more damning statement on the inevitability of legalized same-sex marriage in modern America.
You can read more by Daniel Shea on his blog, Outside(r)LookingIn.