Next week, three months after the justices heard arguments in two same-sex marriage cases, the Supreme Court is set to announce its decisions on both cases. Experts, media, and advocacy groups have tried to predict the result, but nobody seems to have a definite or confident answer.
One agreed-upon fact is that Supreme Court has several ways it can rule on the two same-sex marriage cases. The court may entirely avoid the question of both laws’ constitutionality. Since both President Obama and the governor of California have refused to defend the constitutionality of DOMA and Prop 8, Supreme Court justices may decide opponents’ standing in both cases is not strong enough.
If the Supreme Court takes this route in the case of California’s Prop 8 case, that means the original state-court ruling will remain valid, and Prop 8 will be considered unconstitutional. Since the Supreme Court showed reluctance to rule broadly on both cases, the decision on Prop 8 will likely to be applicable only to California, but not the rest of the 49 states.
In a recent article in USA Today, Richard Wolf predicts that while the Prop 8 ruling may be narrow, the ruling on the federal Defense of Marriage Act will likely be broader in scope. Wolf believes the court will strike down the ban on federal benefits for married same-sex couples. Even Gary Polland, who supported the anti-sodomy statute in Lawrence v. Texas, expressed similar predictions about the upcoming Supreme Court ruling on DOMA. He thinks that the federal government had no right to define in 1996 that only married couples of the opposite sex could receive federal benefits.
Still, caution seems to be guiding the court overall. “Anything that avoids giving momentum to either side in this highly debatable and intensive social debate that’s going on throughout the country would be the route, I think, that would guide them,” said John Greaney, a law professor at Suffolk University School of Law in an interview with U.S.A. Today.
Greaney is right. To get five votes to overturn Prop 8, the court would have to tailor its ruling as narrowly as possible. However, same-sex marriage supporters and opponents both think that the Supreme Court won’t decide both cases on a narrow ground. According to Suzanne Goldberg, a Columbia University Law School professor , the justices will experience enormous pressure while making a decision about the DOMA case. While justices might have to decide the DOMA case on its merits, the possibility of granting LGBT the “heightened scrutiny” that women and African Americans enjoy is low. “It would give gay rights folks tremendous leverage going forward in all areas, [and] the court probably would not want that,” Greaney said in an interview with USA Today.
Among all the justices, Antonin Scalia, who led the dissent in 2003’s anti-sodomy statute case, would most likely write the opinion opposing same-sex marriage again. In a recent seminar on 1973’s Roe v. Wade at the University of Chicago Law School, Justice Ruth Bader Ginsberg shed light on what her decision might be regarding the two same-sex marriage cases. She thinks that judicial restraint is a better alternative than sweeping rulings. “The court can put its stamp of approval on the side of change and let that change develop in the political process,” Justice Ginsberg said. However, this approach might prove too expensive in reality. Thirty states ban same-sex marriage in their constitutions and attempting to overturn these bans state by state will be troublesome. Political momentum might soon reach a dead-end.
As always, Justice Anthony Kennedy seems to hold the decisive vote in both cases. According to a recent article in Slate, Justice Kennedy hinted during the oral arguments that the question on his mind is whether prohibiting same-sex marriage can constitute a form of gender discrimination. The Supreme Court's precedents regarding gender discrimination might provide Justice Kennedy a way to recognize same-sex marriage’s constitutionality in a limited way. Justice Kennedy can find support from a 1993 case in which Hawaii’s supreme court ruled the state’s prohibition on same-sex marriage was against the state’s constitution on the grounds of gender discrimination.
The gender-discrimination framework helps Justice Kennedy prevent himself from breaking new legal grounds, which he expressed concern about during the oral arguments in late March. Kennedy would be able to use the more developed constitutional path which emphasizes the protections against gender discrimination that have been granted to citizens for decades. This could offer Justice Kennedy the safe path to a narrower ruling.
While we are all anxiously waiting for the Supreme Court’s historic rulings, the justices are also wrestling with the potential reactions that their decisions might receive from the general public. One thing for sure: No matter what their decisions are, this will be a watershed moment in American history.