O.K., so as anyone with a pulse by now knows, the Supreme Court has just agreed to hear appeals on two marriage cases. Should we be getting ready for a blockbuster decision, either way? Maybe.
Let’s look at what the Court did here. The Justices have been sitting on a pile of petitions relating to marriage equality, and given the different issues they pose, it’s no wonder they didn’t rush to make their decisions. There was a simpler course of action – one I expected SCOTUS to take – and a messier one. The Justices embraced the mess.
The challenges to the Defense of Marriage Act, aka, DOMA, are the simpler ones, more easily decided on relatively narrow grounds that would have left the big issue of whether gays and lesbians have an equal right to marry for another day. A bunch of cases alleged that section 3 of DOMA violates gay and lesbian couples’ right to equal protection under the law, since it treats married same-sex couples differently from married gay couples. Simply put, same-sex marriages don’t count for federal purposes.
The case the Court took for review, Windsor v. United States, illustrates the point well enough. Edith Windsor, now in her eighties, was in a forty-year relationship with Thea Spyer. The couple finally married in 2007 in Canada (a marriage that was recognized in New York, even before that state began issuing its own marriage licenses a couple years ago). But when Spyer died a couple years later, Windsor was hit with a major bill: $363,000 in federal estate taxes. Had Spyer’s spouse been a man, her bill would have been…zero. That’s because an exemption to the estate tax allows spouses can pass their estates to each other, tax-free. Unless, of course, the marriage involves a same-sex couple. Agreeing with every other federal court to consider the issue, the federal court of appeals for the Second Circuit (New York and a couple of neighboring states) found that this disparate treatment was a clear violation of Windsor’s right to equal protection under the law. It’s hard to argue with that.
DOMA is an unprecedented incursion into a matter historically left to the states – Who is qualified to marry whom? So overturning it should appeal to Justice Kennedy, who will probably return to the role of swing Justice he temporarily ceded to Justice Roberts in the health care decision this past summer. As NYU Law’s Kenji Yoshino has memorably stated, Kennedy likes two things: states rights and gay rights. In fact, he wrote the majority opinions on the two big decisions affecting our community (Romer v. Evans and Lawrence v. Texas), and he did so using sweeping reasoning and rhetoric that certainly provides some reason for optimism here.
Justice Kennedy won’t have to do a heavy lift. It’s hard to justify this particularly pernicious provision of DOMA (the other substantive section has to do with interstate recognition of same-sex marriage, and it’s not at issue in this case), and I’m guessing the Court will find that it doesn’t even have a rational basis – the absolute minimum standard that a law has to meet to pass constitutional muster.
(The Court might also accept the Windsor court’s invitation to put the law under a greater degree of scrutiny; indeed, one reason the Court chose this particular case might have been to settle the issue of whether gays and lesbians constitute a “suspect class” – a minority that is entitled to special protection under the law. Surprisingly, the Supreme Court has never decided this issue, one way or the other.)
If DOMA falls, it’s big news, but not cataclysmic. The states would still be free to decide whether they want to recognize or ban same-sex unions – or to craft some kind of compromise, such as the trendy civil union or the by-now hoary domestic partnership. It’s just that the federal government won’t be able to ignore what the states decide. Same-sex couples legally married in their home state would “just” be entitled to the cavalcade of benefits that rain down on other married couples.
The Court could have, perhaps should have, stopped there. And the Ninth Circuit, which is the federal appellate court that decided the Prop 8 appeal (in the case now captioned Hollingsworth v. Perry, about its third name so far), took steps to keep this flammable material away from SCOTUS by setting its decision that Prop 8 was unconstitutional in the thinnest soil it could find: When same-sex couples can already marry in a state (which was the case in California when Prop 8 was passed, rescinding that right), then taking that right away and replacing it with something that’s all but marriage – comprehensive domestic partnership status – can only be explained by irrational dislike (“animus” is the word often used) of gay and lesbian couples. And that’s not a permissible ground for discrimination under existing Supreme Court precedent.
But the Court would have none of this narrow-casting of the issue. In its order granting review of the case, SCOTUS said it wanted argument on the issue the Prop 8 proponents had offered up: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” That’s not quite as broad as deciding whether gays and lesbians have a fundamental right to marry (someone of their own sex, please!), but it’s close. So does that mean this case is really where the action is? Has DOMA been shoved into the wings?
I don’t know. For the Court also asked the Hollingsworth parties to brief the important constitutional issue whether the Prop 8 proponents even have standing to appeal – a question that the proponents, who asked the Court to take the case in the first place, surely don’t want to deal with. Courts aren’t debating clubs, and the parties who bring suit must have a concrete stake in the outcome. Maybe the Court will find that the proponents have no such stake. If so, then the first appeal wasn’t proper, either, and this case would likely unspool all the way back to what the lower court decided – that the parties involved in the case, and perhaps only those parties, have a right to marry. Yes, it’s possible that the Prop 8 drama of the past few years will come to very little after all, at least for now.
There are also standing issues in the DOMA case, but given the number of parties with a shot at standing, I’m guessing the Court will find that someone has standing – Edith Windsor herself, out all that money, sure seems like a good candidate. (If you’re interested in reading more about the standing issue, read this SCOTUSblog post by the reliably incisive Lyle Denniston.)
I’ll confess that I don’t know what the Court’s going to do with this unruly ganglion of cases. But the stakes just went way, way up, as did the degree of difficulty of legal analysis.
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.
He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.
John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.
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