Monday, March 25, 2013

How Will the Supreme Court Rule on Same-Sex Marriage?

This week is the week that the United States Supreme Court (SCOTUS) tackles the issue of same-sex marriage. The fight for legalizing same-sex marriage has been gaining traction in this country, and given the demographics of the support (e.g., a lot of it is based on age, as well as if you personally know someone who is gay), it should only be a matter before time that same-sex marriage is legal in all fifty states. I would prefer that the government stay out of people's marriages and stop defining what is an acceptable contract for consenting adults. The only time the government should intervene in a contract signed by consenting adults is if there are contract enforcement issues. Alas, we don't live with that libertarian ideal; we live in a world where the government is involved in defining marriage. Based on the two cases before the Supreme Court, there could very well be a shift in the definition of marriage...and it wouldn't be the first time there was a societal change in the definition of marriage.

As for how this will play out, I need to emphasize that I don't have a crystal ball or clairvoyance. These proceedings have a way of taking unexpected turns. For instance, no one expected that Justice Roberts was going to vote in favor of Obamacare. I am going to assume that these two cases won't be thrown out due to technicalities (in this case, the technicality being Article 3, §2 of the Constitution). I will also try to make educated guesses based on the actors involved. With that in mind, how will this all materialize?

The first case is Hollingsworth v. Perry, which is the case questioning whether Prop 8, a 2008 California state law that defines marriage between a man and a woman, is a violation of the Constitution's Equal Protection Clause under the 14th Amendment. Under Article 3 §2 of the Constitution, Hollingsworth might not even have legal standing for SCOTUS to hear the case. I am doubtful of a dismissal of the case on procedural grounds because this is such a hot-button issue where I am sure that SCOTUS wants to weigh in.

Assuming that the case is not thrown out, there are a few possible rulings. One is that SCOTUS upholds the current definition of marriage [between a man and a woman]. Another is that SCOTUS rules in favor of Perry, but limits the ruling in favor of same-sex marriages to the state of California. This ruling would make sense because Californians were previously afforded rights, but said rights were revoked. The third option is the "eight state" ruling. I found this option to be legally creative (read: deft). This ruling would affect the eight states that allow for civil unions, but prohibit gay marriage (i.e., California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island). In these eight states, they treat same-sex marriage couples in all ways but one, i.e., the "separate but equal" bit. This ruling would make it so that civil unions were no longer legally viable because they violate the Fourteenth Amendment. Finally, there is the possibility of the "fifty state" holding, which would allow for same-sex marriage to be legal in all fifty states. There could be the argument that under Romero v. Evans, the discrimination against gay people cannot even satisfy rational basis review. There can even be the argument under Loving v. Virginia that the Due Process Clause allows for one to marry the partner of their choice.

The second case is that of United States v. Windsor. This case will primarily question whether Section III of the Defense of Marriage Act (DOMA) violates the Fifth Amendment in terms of equal protection of same-sex couples whose marriages are already rendered legal on the state level, a.k.a., does a federal definition of marriage defile the notion of federalism? The standing question in this case is a bit more convoluted because the question is whether the House of Representatives has standing to defend DOMA in court. If SCOTUS rules that they don't, SCOTUS can either choose not to hear the case or choose that Windsor still has legal standing, which means the case would proceed. If the House does have standing, SCOTUS proceeds. Assuming the case proceeds, SCOTUS will have to decide whether Section 3 of DOMA violates the notion of equal protection. If it does not, the status quo stays intact, thereby making it more difficult to legally question the definition of marriage in the future. If DOMA is unconstitutional, that means one has to defer to the state's definition of who is married, which would mean at least for those same-sex couples living in states where same-sex marriage is legal, it would mean same-sex couples are granted 1,138 rights, benefits, and provisions previously unavailable to same-sex couples.

It would be wonderful if same-sex marriage were legal in all fifty states because it would certainly be a step in the right direction when it came to due process and contract rights. However, what I would like to happen is not the same thing as what I think will happen. When it comes to civil rights issues, SCOTUS historically likes to be ahead of the curve, but not too far ahead of the curve, which is why I think that same-sex marriage throughout the country is unlikely to happen with these court rulings. It is difficult to guess how all the justices will vote. I assume that Scalia, Thomas, and Alito will vote to uphold DOMA and Prop 8, whereas Sotomayor, Ginsburg, Kagan, and Breyer will vote to repeal DOMA and Prop 8. I figure those justices will vote based on ideological lines, as they typically do. The two justices where I am unsure are Kennedy and Roberts. As we saw in the Obamacare case, Roberts sided with Obamacare in a 5-4 ruling in a failed attempt to limit the government's power. Justice Roberts can very well vote against DOMA and/or Prop 8, but do so in a very limiting manner. Looking at Roberts' voting record, though, one sees that he is one to affirm federal power, which he might do with Congress and DOMA. Kennedy might have made a limited ruling in Romero v. Evans, but based on his ruling in Lawrence v. Texas, I am going to guess that Kennedy wants to be on the right side of history and vote down Prop 8 and DOMA. Justice Kennedy is a proponent of gay rights, but given that Justice Kennedy has a comparable affinity towards states' rights, which is why the Prop 8 case is going to be more complex for Kennedy than the DOMA case. I would guess that there will be 5-4 rulings, but the Court could very well rule 6-3 in favor of civil rights, but again, time will tell.

I would posit that DOMA is repealed, not only because lower courts have already ruled it unconstitutional, but one of the judges who ruled it unconstitutional was Justice Dennis Jacobs, who is a very conservative judge well-known in the world of the Federalist Society. DOMA is an overreach of Congress' enumerated powers, and is thus unconstitutional based on federalist grounds. Even if DOMA is repealed, that would not mean same-sex marriage for all fifty states. What would happen is that there would no longer be a  federal definition of marriage, which means that defining marriage would be relegated to the states. As previously mentioned, the plus for progress for gay rights is that the states that have legalized same-sex marriage would provide the same benefits to same-sex couples that are already provided to other couples.

The Prop 8 case is more interesting just because there are more options that SCOTUS can consider. Cultural shifts lead to legal shifts; that is the way the history of civil rights has operated. Momentum for gay rights has certainly picked in the past few years, and changes previously thought unimaginable (e.g., passing same-sex marriage at the ballot box) have been actualized. If the federalist/"leave it to the states" argument is what brings the more conservative members of the Court, such as Justice Thomas, on board, then I would postulate that the ruling will be limited in nature. Since the lower courts (i.e., the 9th Court of Appeals, federal appellate court) limited their rulings to the state of California, I would guess that SCOTUS will also follow suit on that precedent set. Plus, a more moderate and gradual change will make the issue less divisive over time.

In summation, my concise prediction of what is most likely to occur is the following: repeal of DOMA and repeal of Prop 8 in which the scope of the ruling will be limited to the state of California.


  1. That WSJ article makes a good point. Courts should stay out of interpreting the Constitutionality of laws and should instead sit back and do nothing. Wait for the political process to decide if equal protection means equal protection. After all, we can't just wake up one day and have respect because the courts said so; instead we wake up one day and have respect for each other because the legislatures said so.

    Sarcasm aside, how is it a bad idea to have a national standard of marriage? Consistent rules are economically sensible, at the very least. "Democratic, decentralized decision-making" is a great-sounding idea, except when applied to people's rights.

    1. I agree, Andrew.....state's rights should be trumped by civil rights. 10th Amendment only goes so far, and this should be a threshold. As for why there shouldn't be a national standard of marriage: marriage is first and foremost a contract. Any consenting adults, whether the relation is monogamous or polygamous, heterosexual or homosexual, should be able to sign whichever marriage contract they like. If there are contract disputes, the government should intervene in the event there are enforcement issues, which should take place regardless of the nature of the contract. So in short, government should not be defining marriage or attaching any benefits to it; it should only be an arbitrator when necessary.

  2. You know there are some topics I can feel comfortable discussing only with yourself. Long story short is I'm having a religious crisis right now and don't know what the heck to do about it. I think you can relate and I would love to discuss with you.

    Anyway, to get back on topic. Interesting how you bracket the issue in legal terms. I've been thinking of applying to law school lately. The country is changing more every day and I feel they will follow the lead of Loving v. Virginia to legalize it in all 50 states and follow the lead of Europe and Argentina, as well as the other U.S. states. I'd love for same sex couples to enjoy the same rights.

    However, a minor, or perhaps not so minor, quibble. I find, with my experiences in gay communities, that there is a paradox at play. As gays and lesbians have steadily become more mainstreamed into American culture, they've become much more intolerant of diversity within their ranks or of those who don't fit the ideal, whatever that ideal may be. It used to be that gay folk were kind and tolerant and supportive of each other; because all they had WAS each other. And they did whatever they wanted with their dating lives, things that straight people quailed at. They dated across race or cultural lines; they dated across the age gap, etc. If gay marriage passes, gays will achieve an unprecedented level of social integration that will be GREAT for them individually, but may well doom them culturally as a distinct entity. Their culture will no longer exist as a separate and distinct riposte to heterosexuals. They'll be expected to marry, and expected to be the homosexual version of Ozzie and Harriet- same age, same race, same social class, same everything. I've already seen this happening as social acceptance, however limited, continues to grow. As acceptance grows from outside the ranks, the demand for conformity within the ranks and the bickering and fragmentation of the gay community will continue. It's sad, really, but I think it's evolutionarily unavoidable. Just like with the Haskalah and the Jews.

    Now, if we take that concern beside the prospect of so many rights for homosexuals, I'm willing to admit that, for the long-term good, what I'm worrying about is relatively minor in context. And I say this even knowing that the "bourgeois mentality" is exactly what I as a gay man want; a long-term committed relationship, a house, a garden, kids, pets.. I'd love to have a life like that of my parents. Still and all, I do worry that gay communal solidarity will erode.