In a major step towards equal treatment under the law for same-sex couples, the Supreme Court (SCOTUS) agreed Friday to grant review to two cases addressing same-sex marriage. I’d like to address the potential outcomes of these two cases, and how these outcomes will affect same-sex couples on both a federal and state basis.
The first case, United States v. Windsor, challenges the federal constitutionality of an Act of Congress, the 1996 Defense of Marriage Act (DOMA), which provides that only marriage between a man and a woman shall be recognized by the federal government. DOMA currently denies legally married same-sex couples some 1,138 federal benefits enjoyed by opposite-sex couples and states that even if a couple is legally married in one of the nine states that currently recognize and perform same-sex marriages, they are legally strangers in the other 41 states. Because DOMA is ultimately a states’ rights issue, it is a far less controversial consideration for the Court.
The second case, Hollingsworth v. Perry, challenges the federal constitutionality of a 2008 California ballot initiative, Proposition 8, which modified the state constitution to provide that “only marriage between a man and a woman is valid or recognized in California.” This case, argued by dream team Theodore B. Olson and David Boies (opposing counsel in Bush v. Gore in 2000), seeks to establish a constitutional right to marriage equality and is therefore much more of a risk both in terms of prediction and eventual consequences.
The Supreme Court hasn’t even considered reviewing a same-sex marriage case since the 1972 appeal brought by two gay University of Minnesota students, Richard Baker and James Michael McConnell, who filed suit after being declined a marriage license in Hennepin County, Minn. in 1970 (they got a license in another county and are still legally married). The Court wrote then that they were denying the case “for want of a substantial federal question.” In considering marriage equality in terms of states’ rights, and considering that support for marriage equality is rapidly outpacing the opposition, the time has arrived to address the federal question.
I predict that the Court will unanimously invalidate DOMA. This prediction might seem too intrepid considering the conservative leanings of Chief Justice Roberts and Justices Scalia, Thomas, and Alito, but keep in mind that the Defense of Marriage Act is the first federal intrusion into marriage. Marriage has traditionally been a states’ rights issue, but because of DOMA, same-sex couples who are married in some states are legally strangers in others. Because the conservative justices will ultimately favor protecting the state sovereignty currently violated by DOMA, and because the liberal justices favor LGBT rights, I would be very surprised to see DOMA survive.
The major risk lies within the Proposition 8 case – the Court may decide that there is no such right to marriage for same-sex couples (though in Loving v. Virginia, the 1967 Supreme Court case striking down interracial marriage laws, the Court’s unanimous opinion was that “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”). Such a decision could prevent constituents from filing suit for marriage rights on a state level. Beyond a national approval or denial of same-sex marriage, there are a few more likely directions in which the Court might go.
The Court may determine that it was unconstitutional for California to remove rights (that were granted by the state legislature and provided for in the state constitution) by means of a ballot initiative. TheU.S. Court of Appeals for the Ninth Circuit ruled similarly earlier this year. Finding Proposition 8 unconstitutional would be a safe move for the Supreme Court, because it would mean re-legalizing marriage equality in California without affecting the rest of the nation.
Furthermore, if the Court decides to agree with Attorney General Eric Holder and grant LGBT rights cases heightened scrutiny, the Court would further determine that it is unconstitutional for states to revoke existing marriage equality laws without rational basis. If the Court decides, as it seems they will, that same-sex couples are denied the right to marry on the basis of their sexual orientation alone, they will likely strike down Proposition 8 in California while setting a very strong precedent for other states. In this scenario, it would become very difficult for any state that currently allows marriage equality to ever take it away.
While it remains highly unlikely that the Court will legalize same-sex marriage nationally in one fell swoop, there is one more encompassing option – what NYU Constitutional Law Professor Kenji Yoshino is calling the “eight-state solution.” This solution might extend marriage equality to the eight states that currently have Civil Unions or protections for same-sex couples, which cover everything up to but except marriage. Again, applying heightened scrutiny, the Court might determine that marriage by any other name is just marriage, and so decide that civil unions are simply marriages under the Equal Protections Clause of the 14th Amendment.
It would be huge for the Court to not only invalidate DOMA, but also legalize marriage equality in all 50 states. As this decision would force the 41 states that currently deny marriage equality to begin recognizing same-sex marriage, it will almost definitely not happen. However, while national marriage equality is unlikely at this time, the Court seems likely to determine that revoking marriage equality by means of a popular vote is a violation of the Equal Protections Clause. Just as the Court will presumably decide that DOMA is unconstitutional because marriage is a states’ rights issue, they may also determine that Proposition 8 is constitutional because, again, marriage is a states’ rights issue.