Tonight, you’ll hear on the news that the Supreme Court has agreed to hear the "gay marriage cases.” Much of the mainstream (i.e., straight) media will be treating the two cases they’ve taken—a challenge to California's ban on same-sex marriage, Proposition 8, and a challenge to DOMA, the federal law that prohibits the government from recognizing same-sex marriages performed in the states—as essentially the same. Don’t be fooled. The cases are very different. The fact that SCOTUS has taken both has a lot of us very worried.
Let’s start with the more famous one: the Prop. 8 case. This is the one we did not want the Court to take. At its simplest, the lawsuit—brought by star lawyer team Ted Olsen and David Boies—is asking the Court to consider whether Prop. 8 is constitutional; it’s about whether there’s a fundamental right for same-sex couples to marry. When the California electorate passed Prop. 8 in 2008, you may recall, it overturned the state supreme court’s decision to allow same-sex couples to enter civil marriages. Prop. 8 undid that by amending the Constitution to restrict marriage to one man and one woman. Then, a federal district court judge ruled that all Americans had a fundamental right to marry someone of their choice, with no restrictions based on sex. That decision was so broad it made many of us nervous: We didn’t want to ask for such a broad ruling from the Supreme Court before we’d won the right to marry in more states. Fortunately, the Ninth Circuit Court of Appeals narrowed the scope of the lower court's ruling. It said, essentially, that the California electorate did not have the right to overturn marriage rights after they had been granted. That limited the effect of a Supreme Court decision to California and other states that have passed and then rescinded gay-marriage rights. If SCOTUS had refused to take this case, the Ninth Circuit ruling would have stood, and California same-sex couples would be able to marry. But the Court took it up, which puts off any potential marriages in California at least until June.
The DOMA cases, on the other hand, ask the Court to consider a far more limited question. They involve couples who are lawfully married in the state where they live. For Edie Windsor, the plaintiff in one of the cases, it was the state of New York. But under DOMA’s Section 3, the federal government has refused to treat Edie Windsor and all the rest of us as married for things like taxes, inheritance, immigration, federal pensions, family insurance coverage, Social Security benefits, and so on. Traditionally, states have had jurisdiction over marriage; they alone defined who married, and the U.S. government recognized these marriages. The DOMA questions are essentially two: First, can the U.S. federal government deny recognition to one class of lawfully married people, or is that an unconstitutional denial of equal protection under the law? Second, can the federal government usurp the states’ constitutional power to define marriage? Every single federal court that’s heard a DOMA case has struck Section 3 down. According to Evan Wolfson of Freedom to Marry, that’s ten different federal court rulings, including two appeals court rulings. And pretty much everyone I’ve spoken to on this—and I’ve interviewed widely—expects that at least five, and possibly six, justices will strike down DOMA section 3.
All the hope lies in Justice Anthony Kennedy, who wrote the beautiful and sweeping pro-gay-rights opinion in the two cases we’ve won up at the Supreme Court: 1996’s Romer v. Evans and 2003’s Lawrence v. Texas. In Romer, the Supreme Court overturned a Colorado constitutional amendment, passed by ballot initiative, that banned any city or town from passing laws protecting lesbians and gay men from discrimination. Get that? The majority could not tell the minority it wasn’t allowed to protect itself. Or as Kennedy wrote, Colorado Amendment 2 “is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”
Kennedy also wrote the opinion in Lawrence, which said states could not ban private, consensual intimacy between two adults, even if they were the same sex—striking down the nine remaining state laws that presumed any lesbian or gay man a felon.
Everyone I’ve spoken to has assumed that Kennedy will stay consistent in his position on individual liberty, and will strike down DOMA's Section 3. I’ve even heard speculation that Chief Justice John Roberts will want to be on “the right side of history,” and will do so as well.
Here’s the interesting thing: In both cases, the Supreme Court has instructed the lawyers to talk to them about “standing.” Standing is a narrow technical question that could well decide what happens. Essentially, the question is: Who has the right to argue these cases in court? In the Prop. 8 case, state of California officials refused to argue in favor of the constitutional amendment. Prop. 8’s backers—the ones who had worked to get the initiative on the ballot—undertook the appeal. But did they have the right to argue on behalf of the state if the state chose not to? If they did not, then conceivably the Ninth Circuit’s ruling is invalid—because no one had the right to argue the case. California’s couples would be free to marry under the district judge’s ruling.
The Court has also instructed the lawyers to talk about standing in the DOMA case, or as it put it, "Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case." Obama’s Justice Department declared last winter that it, too, believed DOMA Section 3 is unconstitutional. Since then, DOJ has been on the side of same-sex married couples, arguing that the courts should strike DOMA down. Does BLAG—the Bipartisan Legal Advisory Group deployed by House Speaker John Boehner and the House of Representatives—have the right to argue the case?
In sum, here’s what we know: The Supreme Court will be considering whether it was constitutional for California voters to roll back same-sex marriage and whether or not the federal government can ignore my Massachusetts marriage (and others in Connecticut, Iowa, Maine, Maryland, New Hampshire, New York, Vermont, Washington, Washington D.C., and any others that may come along before June). There are a lot of "ifs" left. Which "side" agreed to hear the cases—the conservative four or the liberal four? Is anyone there thinking about a broad ruling in the Prop 8 case, which would allow same-sex couples to marry in every state (God, I hope not; I can only picture a national revolt. It's too soon for that!) Will it rule on the "scrutiny" issues: Does sexual orientation count as a disfavored, and protected, identity, or are laws affecting people because they are or are not lesbian or gay valid laws? Will they slide out of making any big decisions on procedural grounds, putting off broad rulings until a later day when public opinion has settled more firmly on the side of equality? Make no mistake: SCOTUS is paying attention to the fact that four states voted on the freedom-to-marry side just a month ago. They see where things are heading. Antonin Scalia and Samuel Alito won't vote with us, but Roberts and Kennedy are certainly looking at how history will view them. When I got Eeyore-ish on Twitter about the fact that SCOTUS had decided to take the Prop 8 case, one of my Twitter followers said: "I like you, E.J., but I hope you're as wrong about this as you were about Maryland!" I cannot tell you how strongly I hope that's true.