Possible Outcomes in the Marriage Equality Cases


The New York Times has a very helpful chart that shows all of the possible outcomes of the two marriage equality cases being heard by the Supreme Court this week, one involving Prop 8 in California and the other involving the Defense of Marriage Act.

In both cases, there are procedural rulings that would allow the court to punt on them without issuing a ruling on the actual merits. There are standing issues because, in both cases, the government declined to defend the constitutionality of the law (though with DOMA, it gets doubly complicated because the Obama administration initially did defend the law in the district court trial, then decided after that to change sides). And there’s a question in the DOMA case of whether the court even has jurisdiction to hear the case (due to the noted complexities above). As the Times chart notes:

The court could decide that it lacks jurisdiction because the two sides — the plaintiff and the Obama administration — agree that the law is unconstitutional and House Republicans do not have standing to defend it.

At a minimum, the plaintiff, Edith Windsor, wins her case and becomes entitled to a tax refund of more than $363,000. Legal experts differ about the more general effect of a ruling that the Supreme Court lacks jurisdiction, but most agree that such a decision is unlikely and would, one way or another, effectively spell the end of the challenged part of the 1996 law.

This could get really weird because, presumably, if the court were to rule this way it would leave the district court ruling in place, which struck down Section 3 of DOMA. But that means the federal government would have to recognize same-sex marriages performed in the southern district of New York but nowhere else. And that gives rise to an obvious equal protection problem. Just bizarre, which is probably why most legal scholars think that is an unlikely result.

But the real key here, as I’ve written before, is what standard the court chooses to apply in both cases in evaluating the constitutionality of the law. If the court agrees with the plaintiffs and the Obama administration that sexual orientation is a “suspect class” and applies heightened scrutiny, both laws are likely to be struck down. But perhaps even more importantly, that also means that every other law that has a disparate impact on LGBT people is unlikely to survive a court challenge in the future. The impact of that would be huge and it would go far beyond the issue of marriage equality.

Comments

  1. marcus says

    I am also interested in seeing what would happen if the entire DOMA was struck down, particularly with regard to the possibility of non-marriage equality states having to recognize the validity of same-sex marriages from marriage equality states. The whole concept of refusing to recognize or of limiting same-sex marriage starts to leak like a sieve.

  2. subbie says

    marcus, even if DOMA is struck in its entirety, no state will have to recognize a same sex marriage from another state if doing so would violate the public policy of the recognizing state. That has long been an exception to the Full Faith and Credit Clause.

  3. David C Brayton says

    It doesn’t seem really weird. There are splits amongst the circuits on all sorts of issues and such splits can exist for a long time before the Supreme Court resolves the split.

    One criterion the Court uses in deciding whether to grant cert is whether there is a split amongst the circuits. Often, the Court will allow an issue to ‘percolate’ for many years to allow several circuits to opine on the issue and develop in-depth analysis on both sides.

    I’m not aware of any case where such a split has been deemed an equal protection violation. And if it were, it would substantially change the way the federal courts have worked for a long time, since before the 14th Amendment was adopted.

  4. jamessweet says

    But the real key here, as I’ve written before, is what standard the court chooses to apply in both cases in evaluating the constitutionality of the law. If the court agrees with the plaintiffs and the Obama administration that sexual orientation is a “suspect class” and applies heightened scrutiny, both laws are likely to be struck down. But perhaps even more importantly, that also means that every other law that has a disparate impact on LGBT people is unlikely to survive a court challenge in the future. The impact of that would be huge and it would go far beyond the issue of marriage equality.

    Aaaaaaand, I’d bet good money the “suspect class” thing won’t happen. We know for certain that there are four rock solid votes against that path. (It’s conceivable, though still unlikely, that one or two of the conservative justices could vote against DOMA on states’ rights grounds, but it’s a dead-on lock that they won’t get on board with “suspect class” status) Kennedy has seemed reluctant to go that route in the past, and even Ginsburg seems unlikely to issue such a sweeping ruling, given her feelings about the court getting too far out ahead of the electorate.

    Granting LGBT “suspect class” status would essentially mandate true equal rights in every aspect in every state of the union, which would be a radical (if very welcome) result. It just ain’t gonna happen.

    We might at best hope for a concurring opinion that argues for suspect class status. But it won’t be the majority opinion, no way, no how.

Leave a Reply