DOMA and Prop 8: Supreme Court Won't Make History With Their Decision

" ... I think it would be a big surprise if the [C]ourt did anything radical when it came to same-sex marriage — either saying there was a constitutional right to it, or rejecting that claim outright and forever. I think that's something they're going to try and tread that middle ground path." — Thomas Goldstein, SCOTUSblog.com

As the Supreme Court concludes a historic session that has already brought high-profile decisions involving the Voting Rights Act of 1965 — which it partially invalidated pending further congressional action; affirmative action — on which it effectively punted; and gene patenting, the nation's highest court is poised to issue potentially sweeping decisions on gay marriage that will inevitably affect both federal and state approaches to this contentious issue - if it opts for such a dramatic course.

The Supreme Court is actually considering two separate cases: Hollingsworth v. Perry and Windsor v. U.S. The former involves California's Proposition 8, a voter referendum that reversed the California supreme court's conclusion in the In re Marriage Cases that same-sex couples possess a constitutional right to marriage, while the latter involves the Defense of Marriage Act (DOMA), a federal law reluctantly signed by President Clinton in 1996 that defines marriage as a union between one man and one woman, prevents same-sex couples from receiving federal marriage benefits, and permits states to ignore same-sex marriages conducted elsewhere. While advocates on both ends of the political spectrum are hoping for conclusive rulings, in all likelihood the Court will not take ultimate action in either direction.

The Supreme Court is an inherently conservative institution: It does not favor disrupting the status quo by issuing activist decisions. Of course, the Court often defies this trend, as in Roe v. Wade, but more often it takes a sequential approach to critical social and political issues. Consider, for instance, the landmark Brown v. Board of Education decision, which vindicated the struggles of African Americans and their allies — struggles that today's LGBT activists undergo. Brown ostensibly overturned the ignominious Plessy v. Ferguson and immediately desegregated public schools. However, contrary to popular thought, Brown was actually the culmination of a series of cases dating to early-and-mid-20th century. For many years, the Court pivoted from racist and logically unsound late 19th to early 20th century decisions and instead progressively undermined racist educational policies, thereby enabling a more comprehensive decision in 1954. In 1948's Sipuel v. Board of Regents, the Court held that Lois Ada Sipuel could not be denied admission to a state law school on the basis of race; similarly, 1950's Sweatt v. Painter established the earliest vestiges of Brown's separate-but-equal-is-inherently-unequal reasoning. Thus, by 1954 the Court was equipped with ample precedent enabling its historic decision and an intangible timeliness that made it palatable. (Interestingly, even Brown was not the final word: two further decisions informally known as Brown II and Brown III perpetuated the desegregation program.)

The Court may adopt a similar approach regarding gay marriage by initially issuing some tentative supporting decisions to create a more favorable future scenario or to allow the issue to organically develop in state houses and Congress as public support continues to swing towards recognizing full LGBT rights and protections. Indeed, recent polling data reveals public support for same-sex marriage at unprecedented highs:

As Nate Silver elucidates, public opinion will probably continue to swing heavily towards pro-LGBT positions in the future. Here are his extrapolated projections on potential future same-sex marriage ballot initiatives:

Such projections reflect a recent poll showing most Americans believe same-sex marriage is an inevitability.

The potentiality for a Brown-style accumulative judicial process comports with the general legal community consensus that the Court may determine Hollingsworth's petitioners lack standing — legalese for when parties to a lawsuit lack the authority to participate in it — or dismiss as improvidently granted, or DIG it, which basically means it should never have been heard at all. This latter possibility is especially likely if the Court splits ideologically 4-4 and perennial swing vote Justice Anthony Kennedy refuses to cast the deciding vote either way. Both outcomes are tacit victories for the LGBT community: A standing decision would probably force the process to begin anew — time consuming perhaps, but not entirely unfavorable considering shifting public opinion — while a DIG would essentially affirm lower court decisions overruling Proposition 8. 

The Court may handle Windsor similarly, although a more meaningful decision is likelier for the DOMA question than for Proposition 8, in part because it presents more meritorious issues. As fellow PolicyMic pundit Derek Miles noted: "Windsor was [not] predicated on a question of whether or not same-sex couples have a constitutional right to marry. Instead, the case is premised on the notion of whether or not Congress is lawfully able to treat same-sex couples differently than different-sex couples in regards to federal laws and programs such as Social Security benefits and income and estate taxes."

Determining that same-sex couples are entitled to the same federal benefits as opposite-sex couples is precisely the type of paradoxically limited yet progressive decision the Court may issue short of definitively settling a constitutional question.

On Roe v. Wade, Justice Ruth Bader Ginsburg recently stated that the Supreme Court should have "put its stamp of approval on the side of change and let that change develop in the political process." That reasoning may very well determine the fate of same-sex marriage in the Supreme Court.