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Dec 13 2012

Possible Outcomes in SCOTUS Marriage Cases

On Sunday night, JT Eberhard surprised me with a phone call in the middle of his podcast to ask me about the Supreme Court’s decision to hear two cases involving marriage equality. That prompted me to do some thinking about how the court will rule. Here are my thoughts on that question.

First, I think it’s pretty unlikely that the court will issue a broad ruling saying that the 14th Amendment requires the federal government and the states to legalize and recognize same-sex marriages. I think that would be a real departure both from the historical pattern in similar cases and against the nature of the current court. William Eskridge and Hans Johnson look at the historical precedent:

Today, public opinion has shifted dramatically away from overwhelming repugnance at marriage equality, toward overall support for the idea. Confirming this shift last month, voters in Maine, Maryland, and Washington endorsed marriage equality in their states through popular initiatives, with Mainers revising their constitution to do so. And the voters in Minnesota rejected an anti-equality amendment to the state constitution, a campaign for which opponents of marriage had prepared for several years.

The election of 2012, demonstrating that it is safe for most politicians to support complete equality for sexual and gender minorities, finds a parallel in the election of 1964, which demonstrated that it was safe for most politicians to support complete equality for racial minorities. Three years after 1964, the Supreme Court in Loving v. Virginia swept away all state laws denying marriage equality to interracial couples…

The Warren Court declined to disturb anti-miscegenation laws in the 1950s, when three-fifths of the states had laws barring different-race marriages. Bowing to the blatant affront to minority citizens, lawmakers in half of those states repealed their statutes between 1957 and 1967. When the Court did act, in Loving, its insistence on marriage equality for interracial couples had greater bite because the nation’s public law conversation was coming to an end on this issue.

In the first half of the 20th century, 47 states had laws banning interracial marriage and, as they note, the Supreme Court did not act to invalidate those laws until 1967, by which time only 16 states had such laws. I think we are just at the beginning of that pattern with same-sex marriage. 32 states quickly passed laws prohibiting same-sex marriage between 2004 and 2010. In 2012, four states went in the opposite direction.

I think we’ll start seeing more states repeal their bans starting in 2014 and by 2020, I expect them only to be in place in the most conservative states, mostly in the South. After that point, and only after that point, I expect the Supreme Court to issue a broad equal protection ruling making equality the law nationwide. As one wise wit put it, the Supreme Court likes to be the last player in on a gang tackle, running in at the last second to jump on top of the pile while yelling “let’s do some justice here!”

So what do I think the court will actually do? I think there are three possibilities.

Worst case scenario: The court rules, probably 5-4, that both Prop 8 and DOMA are constitutional under the rational basis test. This would be a bad result, but not fatal to marriage equality. The trends in public opinion could not be more clear and the momentum is all on the side of equality. I see nothing that could realistically change that. And just as the Supreme Court’s refusal to overturn miscegenation laws in the 50s and to overturn sodomy laws in the 80s did nothing to prevent them from reversing themselves in 1967 and 2003, respectively.

Middle case scenarios: There are actually several here. In both cases, the court clearly left themselves outs to decide the cases on purely procedural grounds (jurisdiction and standing) and avoid ruling on the merits. They could do that in one or both cases. That would delay any final decision, but there are at least nine more cases working their way through the courts and they likely aren’t all going to be dismissed on such grounds.

There are other middle case scenarios, especially on the Prop 8 case. The court easily issue a very narrow ruling in that case that upheld the lower court decision but does not legalize same-sex marriage in other states. Kenji Yoshino explains how they might do that.

Best case scenario: Since I don’t think the court is likely to legalize same-sex marriage on federal constitutional grounds, here’s what I think is the best scenario that is reasonably likely. The court could issue a narrow ruling in either case that falls short of deciding the ultimate issue but explicitly names sexual orientation as a suspect class, thus requiring the courts to apply heightened or intermediate scrutiny when evaluating the constitutionality of laws that affect the LGBT community.

That would be very, very important, maybe more important even than finding that same-sex marriage must be legalized nationally. It would mean that every single legal challenge to any law that affects gay rights must apply a more difficult standard to the government’s case. This would then buy the court a few years before having to issue a broad ruling, based on that standard, that invalidates laws that ban same-sex marriage.

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  1. 1
    Reginald Selkirk

    I see this as Scalia’s last chance to go down in history with a Dred Scott quality decision.

  2. 2
    Michael Heath

    Ed writes:

    I think it’s pretty unlikely that the court will issue a broad ruling saying that the 14th Amendment requires the federal government and the states to legalize and recognize same-sex marriages.

    If this does happen then we’ll have a handful to several majority, concurring, and dissenting opinions to read where justices avoid the plain language of the 14th Amendment. We can be near-certain at least J. Scalia will seek to avoid the 14th given his public rhetoric on gay rights. Whether he writes an opinion is something I don’t think we can predict with confidence; in spite of his seniority. That’s because his publically voiced opinions come straight from religiously sanctioned “morals” rather than using the Constitution as his frame of reference.

  3. 3
    steve84

    There isn’t a narrow possibility in the DOMA cases. Either it’s constitutional or not. And since it’s a federal law you can’t have a situation where it’s applicable in some areas of the country and not in others. That’s precisely the thing SCOTUS is supposed to avoid and a prime criteria in deciding which cases to take.

  4. 4
    slc1

    Re steve84 @ #3

    The court could always fall back on that old standby, standing, when they want to avoid setting a precedent.

  5. 5
    jamessweet

    I think it is highly likely that we’ll see a “middle case” for the prop 8 case, since the Circuit court gave the Supremes such an easy out: Let it apply to California and California only, in that you can’t give a right and then take it away without a rational basis. Reversing an already-granted right to marriage equality is not really in the cards anywhere else, so they can rule that way and rest easy knowing it doesn’t apply beyond California (which would probably pass marriage equality if it were put to a vote today anyway).

    For DOMA, I don’t know enough about the case to say.

    I do think you’re a little too hard on SCOTUS here… they do like to be a little behind the curve, but they are not at all the “last player on the pile” — without Loving v. Virginia, when do you think the last state would have finally legalized interracial marriage? I’m betting 80s or possibly even into the 90s. The court still makes a positive difference on matters like that, even if they don’t have the courage to be forerunners.

  6. 6
    d.c.wilson

    If the Supreme Court does declare marriage equity, Scalia may go down in history as the first justice to stroke out in the middle of writing an opinion.

    He condemnation of homosexualty at Princeton this week was pretty much devoid of any reference to the Constitution and depended more on, “Ewwwwww! It’s icky!” No matter which way the court rules, his opinion will be interesting reading.

  7. 7
    eric

    Ed, what do you think the chances are that the conservative faction wil use thes cases to issue a broad ruling on standing? I.e. lay out limits on what sort of third parties can defend a law (or sue to have it enforced) when the government refuses to do so?

  8. 8
    David C Brayton

    Excellent summary Ed, if only because I agree with you on every point. However, the standing issues seems likely to carry the day. Mike Ramsey, a former clerk of Justice Scalia, discusses why BLAG does not have standing at his blog The Right Coast.

  9. 9
    Ed Brayton

    If the court does rule on standing in either case (and the issues are similar but still distinct), then it leaves a huge gaping question: What happens if the executive, either federal or state, declines to defend the constitutionality of a law? If there’s no one else who has standing, the law becomes essentially impossible to challenge because any case would be dismissed. That can’t mean that the law is automatically overturned, but it’s also perverse to say that the law is constitutional by default because no one has standing to defend it — it makes the law presumptively constitutional even though the government itself agrees that it’s not. So I don’t see how the court can rule on standing without causing one of these two bizarre outcomes.

  10. 10
    eric

    I agree it would be bizarre. But the court has issued bizarre rulings before. I’m thinking of the affirmative action pair a few years ago, where the court said you could make race a factor but you could not give it a numerical weight. That, IMO, was pretty bizarre. It left the academic community scratching its head about how, exactly, they were supposed to do both things. It would not surprise me if something like that happened here, where the court ended up leaving the legal community scratching its head over how , exactly, to implement some ruling on standing.
    .
    Anyway, thanks for the coverage. I guess my question was sort of a mind-reading one: do you think SCOTUS is taking these cases because they want to discuss standing or some point of law and then kick the substantive question back to the lower courts, or do you think they took it because they want to make a substantive ruling on the legality of gay marriage?

  11. 11
    cptdoom

    One middle-ground possibility that hasn’t been discussed, at least in what I’ve read, is the possiblity the court will rule Prop 8 unconstitutional on narrow, but not quite as narrow grounds, as the Circuit Court. That is, using Romer v. Evans as the precedent, ruling that all the anti-gay state Constitutional Amendments passed in 2004 and 2008 are federally unconstitutional because they limit one group’s ability to get redress from the state government – particularly when the amendments don’t allow civil unions either. I don’t know if that is a possibility, but it would be a positive outcome for the movement, because I am not at all sanguine that states will be able to overturn those amendments without a Court decision. Of course, the Court could also rule as narrowly as the Circuit Court on Prop 8 and that would create a precedent to question the constitutionality of the remaining amendments.

  12. 12
    steve84

    @slc1
    The point is that if they did it would leave the appeals court ruling stand. Which means DOMA would only be unconstitutional in one circuit. That’s not really something SCOTUS can tolerate.

    Prop 8 is a different thing here because it only affects CA. But DOMA is a federal law that needs to be applied equally everywhere.

  13. 13
    steve84

    @Ed Brayton
    There is a great piece mentioning that issue here:
    http://opinionator.blogs.nytimes.com/2012/12/12/standing-and-delivering/?nl=opinion&emc=edit_ty_20121213

    “Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.”

  14. 14
    lofgren

    I predict they will rule that DOMA is constitutional in the same way that affirmative action is. If we don’t bribe men to marry women with tax breaks, everybody knows they will all marry each other and women will once again be disenfranchised from participation in an important American institution. Women marrying women and men marrying men is not an acceptable compromise because that’s segregation and we all know separate but equal doesn’t work in practice. Therefore men must marry women to keep society fair.

  15. 15
    Michael Heath

    jamessweet writes:

    Let it apply to California and California only, in that you can’t give a right and then take it away without a rational basis.

    No government is capable of giving or taking away a negative right. Gays own their right to marry, states either protect or infringe upon a right. So SCOTUS could determine its unconstitutional to stop protecting a right previously protected.

  16. 16
    Emu Sam

    The government may be incapable of affecting whether or not we have a particular right, but they can certainly choose whether or not to acknowledge it, and take away that acknowledgement later.

  17. 17
    Michael Heath

    Emu Sam, I assume to me:

    The government may be incapable of affecting whether or not we have a particular right, but they can certainly choose whether or not to acknowledge it, and take away that acknowledgement later.

    Of course, which is exactly why I previously wrote, . . . states either protect or infringe upon a right.

    It’s not only sloppy to claim governments decide what is or what is not a right, it also leads to the type of confusion that allows propagandists to successfully claim, often ignorantly, that if a right isn’t numerated in the Constitution, it doesn’t exist, e.g. the right of a female to have an abortion. Which fails on at least two counts since such an assertion also ignores the existence of the 9th Amendment, which should provide a giant hint such an assertion fails on its face.

    Far too many people on the left and the right wrongly think government decides what is a right. Partly because the rhetoric in the public square so often refers to whether a right exists or not, which is a fatally defective premise; that’s often conflated to the false idea government decides what is a right or not and grants rights. Governments instead decide:

    a) whether they have to protect a right (e.g., speech – think of public school students’ speech like the case commonly known as Bong Hits for Jesus),

    b) protect a right against a competing right infringing upon the exercise of that right (e.g., the right for blacks to access goods and services v. racist business owners’ association and property rights – which took the Civil Rights Acts in the 1960s to overcome), or

    c) government has the delegated power to an infringe on a right (e.g., tax our income, promote certain types of religions at the expense of all others and the ‘nones’).

    Falsely presuming we or the government can define a right or not is a pet peeve of mine because the public en masse doesn’t understand the relationship between rights and government where the rhetoric from most confuses their understanding further. That’s led to people not fully appreciating the role the courts have in protecting our rights, we let them off the hook far too much, even on the left.

    In this case the plain and unambiguous language of the 14th Amendments Due Process clause and especially the Equal Protection clause should result in no controversy at all when it comes to the right of gays to marry an the obligation of the federal government to protect that right against the unconstitutional encroachment of state powers. Those clauses are so plainly worded in absolute terms they provide absolutely zero leeway for states to deny gays their equal rights. And yet we rarely see these two clauses even raised when discussing this issue.

    And Ed is correct in raising the issue regarding which level of scrutiny the court will apply to these gay marriage cases. That’s become our modern-day context since the late-1930s rather than the framing I report above. However, Ed’s also right in his previous arguments that there should be no levels, the courts should always put the obligation on the government to prove they have the power to infringe upon somebody’s rights.

    I think that if our society properly understood the nature of negative and positive rights, the quality of our debate would soar instead of focusing on what are effectively red herrings which favors political ideologies and partisan politics to the detriment of our freedom and demand for ‘just governance’ we asserted in the DofI, ‘just governance’ when it comes to defending the individual from the tyranny of the majority, politically powerful religious sects like conservative Christians who successfully deny most American gays their rights, or political factions.

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