This morning, the Supreme Court did not decide to take Perry v. Hollingsworth, the California Prop. 8 case. According to the conference schedule, the Justices were supposed to discuss it yesterday. They didn’t actively decline to take it; they could still make a decision to hear it in the months to come. But at least for today, no news is good news.
Let me explain. This year, almost every expert I’ve spoken to or seen believes that the Supreme Court will hear argument on some aspect of the marriage-equality question. What many LGBT advocates most profoundly hope is that SCOTUS will take up one of five current challenges to DOMA, the 1996 Defense of Marriage Act—and will decline to review the Ninth Circuit’s decision in Perry. Although both the DOMA cases and the Prop 8 case touch on marriage for same-sex couples, the issues are quite different.
In the DOMA cases, couples who are lawfully married in their home states—Massachusetts, Connecticut, New York, Vermont, and California (for a couple that married during those six months when same-sex couples could marry there)—are challenging the law, saying: Our states married us. The federal government has the power to make laws and regulations that hinge on marital status, but it can’t decide which marriages it likes and doesn’t. According to this argument, DOMA violates the U.S. Constitution’s promise that each American will be protected equally by the law. According to this line of argument, the U.S. cannot say that, for instance, Edie Windsor could have inherited her spouse's estate tax-free had she married a man—but, after forty years with her partner, she must pay a tax bill of $363,000 because her dead spouse was a woman. If New York says Edie Windsor was married, the U.S. must follow suit.
Almost everyone I’ve spoken to—I did a number of interviews for an in-depth article in this month's Advocate, just posted on the web—believes that SCOTUS will almost certainly hear a DOMA challenge. And everyone I talked to believes that the Court will probably (no guarantees!) declare DOMA’s Section 3 unconstitutional. That’s the part that says that, for federal purposes, the definition of marriage is a union between one man and one woman, no matter what your home state says. Knock that part down, and, for instance, and my wife will no longer be paying $3,600 peryear in taxes on the fact that I’m covered by her health insurance; once the federal government counts us as married and therefore accepts that I am part of her family, that health insurance will no longer be treated as extra income. That’s just one of the more immediate ripples that would result from the end of DOMA; the annoyances, inconveniences, and costs are many.
Perry, however, is a very different case. Brought by the celebrity legal team of Ted Olson and David Boies, the California Proposition 8 case that is either about (depending on who’s interpreting it) whether same-sex couples have a fundamental right to marry or whether voters can vote to take away a court-appointed constitutional right based on nothing but bias and hatred. The Ninth Circuit already ruled, narrowly and specifically, that under California’s particular and peculiar circumstances, Prop. 8 was as unconstitutional. If SCOTUS declines to hear Perry, same-sex couples in California will be free to marry once again. If it does decide to hear Perry—well, here’s what I wrote for The Advocate:
If the court does take up Perry, be afraid, be very afraid. Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry’s heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution? Maybe the Supremes would be ready to say this in 10 years, after LGBT forces have repealed most of the state mini-DOMAs, replacing them with marriage equality in all but a handful of Southern states. But not yet. Anyway, the Ninth Circuit already struck down Prop. 8, brilliantly writing a very narrow opinion that applies only to California, given its weird history of having its top state court rule that same-sex couples could marry, then whisking marriage away by popular vote.
But breathe a sigh of relief if the Supreme Court does not take Perry’s appeal, because that means California’s same-sex couples will be able to marry once again, given the neatly delimited judgment issued by the Ninth Circuit.
Yesterday, the Supremes made no decision either way. According to the indefatigable Chris Geidner, the Justices may well have decided that they won’t announce even whether they will take any of the marriage-related cases until after the November election—lest the mere fact that the issue will be up for discussion will influence voters. Or is it that they want to hear what voters say in the four states where marriage is on the ballot—Maine, Maryland, Minnesota, and Washington—and where we’re expected to win the popular vote in at least two states, for the first time in such a contest?
If the Supreme Court does take DOMA cases, that won’t be the end of the issue. Again, from my Advocate article:
If the court knocks down DOMA’s section 3, break out the champagne and the confetti: We’re nearly home. The news media will trumpet the victory, more politicians and companies will feel secure coming around to our side, and more individuals’ minds will be changed as they see how little changes when same-sex couples are treated fairly. Tens of thousands of same-sex couples in marriage-equality states will be married not just in their home states but also in the United States, saving them money and trouble. Couples from antimarriage states who travel to marry in, say, Iowa will now face the inverse conundrum: They will be married in the United States but not in Kansas or North Carolina. Their families, friends, and employers will start to take the issue personally as they deal with marriage inequality not just as an abstraction but as a daily dilemma for real, human families.
The fight won't be over, but we would be much farther along.
If we lose, and the Court upholds DOMA? Well, that would be no fun. But we’ll just keeping working to pass the Respect for Marriage Act, by which Congress could repeal DOMA, and to pass marriage at the ballot box (as is up for consideration this November in Maine, Maryland, and Washington).
For today, no news is good news. For tomorrow—well, I'll keep reporting. Watch this space!
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