As expected the Supreme Court has decided to consider, but not necessarily decide, two of the ten cases dealing with same-sex marriage cases that had been submitted to it. These cases will likely receive the greatest interest, most anticipation, and thus the largest amount of unbridled pointless speculation during this term, similar to what accompanied the Affordable Care Act in the last term. Like the last time, the verdict may confound many observers because the court has many options, ranging from the very narrow to the very broad, from technical issues of standing to sweeping verdicts on the nature of marriage.
Over at the invaluable SCOTUSblog, Lyle Denniston discusses the two cases. One is Hollingsworth v. Perry that involves California’s Proposition 8 that looks at whether voters can, by a referendum, take away same-sex marriage rights that had been recognized by the state Supreme Court. The other is United States v Windsor in which Edith Windsor of New York challenged the constitutionality of the Defense of Marriage Act because she was required to pay a federal tax on the estate she inherited from her same-sex spouse after the spouse’s death because the Act decreed that marriage was only between a man and a woman, even though she was legally married according to the laws of the state in which she lived.
Denniston had earlier written a series of four posts examining the arguments being made for and against legalizing same-sex marriage. They are: Same-sex marriage I: The constitutional standard, Same-sex marriage II: The arguments for, Same-sex marriage III: The arguments against, and Same-sex marriage IV: The Court’s options.
Tom Goldstein says that how rights cases like these are decided is dependent on the time in which they are adjudicated because “the painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided” and thus the argument that the constitution has to be interpreted the way the original framers intended is misguided.
Here, the argument that the Framers of the Constitution would have recognized constitutional rights related to same-sex marriage is silly. In fact, the claims of same-sex marriage advocates were hopeless in this Court – both because of its conservativism but also because of social attitudes – as recently as five years ago.
But the arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast.
But given that we are in the transitional stage, it is hard to tell which way the court will rule next summer, so we can ignore the pundits who listen to the oral arguments and claim to be able to read the cues and body language of the justices and predict the verdict.