The U.S. Supreme Court may decide as early as Friday which of the many cases involving marriage equality under appeal that they will hear. Chris Geidner has a rundown of all the various cases they could take on, which are the most likely, and what all the scenarios are for how they will handle them.
First, there is the appeal of California’s Prop 8, which was declared unconstitutional by both the district and appeals courts. Second, there are a number of appeals of the Defense of Marriage Act, particularly Section 3, which has been struck down by several federal district courts in different cases, and by two of the appeals courts. Geidner notes that at least one of the DOMA appeals is almost certainly going to be granted cert, but the Prop 8 case is kind of a toss up — they could accept it or not accept it, but doing so will require them to engage the question of whether bans on same-sex marriage are constitutional directly. Here are the four possibilities he lays out:
• The court takes multiple DOMA cases and the Proposition 8 case. This outcome would be the “all in” option, and it would make clear that at least four justices want the court to resolve the legal questions surrounding these issues, from what level of scrutiny that laws classifying people based on sexual orientation should be given (see more about this here) to whether gay couples have a constitutional right to marry. (The DOMA cases also feature the unusual circumstances, in place since February 2011, of the Obama administration opposing the law’s constitutionality and the House Republican leadership defending the law.)
• The court takes one DOMA case, while holding the other DOMA cases pending that decision, and takes the Proposition 8 case as well. This is not very different from the first possibility, although the choice of one DOMA case over another could be seen as narrowing the type of argument about the law that the court would like to hear. More likely though, it would simply be a sign of the justices having picked a case in which Justice Elena Kagan, who served as the top appellate lawyer in the Obama administration before joining the court and may choose to recuse herself from one or more of the DOMA cases because of that, can participate.
• The court takes a DOMA case (or multiple DOMA cases) and holds the rest of the cases, including Proposition 8, pending the outcome of the DOMA case. This prospect, advanced as a possibility by Georgetown law professor Nan Hunter, could be taken by a cautious court, wanting first to resolve some general questions — including the level of scrutiny to be applied to sexual orientation classifications — before acting on the other, more direct, question about whether same-sex couples have a constitutional right to marry that is raised in the Proposition 8 challenge. This, as with taking the Proposition 8 case, would delay when same-sex couples in California might be able to marry.
• The court takes a DOMA case (or multiple DOMA cases), but denies certiorari in the Proposition 8 case. This option, once considered by advocates to be the most likely possibility, would lead to same-sex couples being able to marry in California within days. The Ninth Circuit’s ruling in the case did not broadly resolve the marriage question, instead holding that Proposition 8 was unconstitutional because it took back rights formerly held by Californians. As there are other cases in the legal pipeline about same-sex couples marriage rights that could make their way to the Supreme Court, the court could decide to let the narrow Ninth Circuit decision stand.
I think the third option is the most likely, especially given Chief Justice Roberts’ preference for a court that acts incrementally rather than in broad strokes. I would not be surprised if he were to argue in conference that the court must first settle the question of what level of scrutiny the lower courts must apply to cases involving sexual orientation, then let the lower courts apply that standard and see where things end up before the Supreme Court should get involved in answering the more direct questions.
And I think there’s a good chance that Justice Kennedy would favor that approach. Like every case involving gay rights since 1987, Kennedy is the one who will determine the direction of the court. And his record is quite strong; he authored the two most important gay rights cases in the history of the court (Romer v Evans in 1996 and Lawrence v Texas in 2003). In both cases, he stopped short of applying intermediate or strict scrutiny, though he hinted at it, and applied only the rational basis test to reach the conclusion that both states laws were unconstitutional.
But the 2nd Circuit Court of Appeals, in striking down Section 3 of DOMA in October, explicitly applied heightened scrutiny and made very strong arguments for why the treatment of sexual orientation demands such a standard, citing Kennedy’s earlier decisions in the process. So this is not a question that the court is likely to dodge at this point. And the key, again, is Kennedy. And I think it’s pretty much a coin flip as to which way he goes.