Briefs are being submitted to the US Supreme Court on the two same-sex marriage cases that will be argued next month.
One of the cases involves Proposition 8 from California 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 proposition was subsequently overturned by a US District judge and the verdict upheld by the US Ninth Circuit Court of Appeals. What is interesting is that the state government refused to appeal the original verdict and so the proposition’s original sponsors took up the appeal.
Lyle Denniston has been following developments in the case. He says that narrow rulings could come in two ways. One is simply on the issue of standing. The court could rule that only the state government has the right to appeal the overturning of a law and so the sponsors do not have standing in this case. As to the other narrow option available to it, it could simply affirm the appeals court ruling on technical grounds.
The Circuit Court ruled that, because California had once allowed same-sex marriages, it could not constitutionally take that away, at least when that was done in part because of hostility to homosexuality. Approaching the dispute that way, the Circuit Court ruling essentially is a California-only ruling, since no other state that has once recognized gay marriage has later taken it away.
But Denniston says that while the two high-profile lawyers Theodore B. Olson and David Boies who are arguing in favor of same-sex marriage rights have made those points, they seem to have decided to try and persuade the justices to come down with a sweeping ruling in favor of the right to same-sex marriage, rather than with a narrow ruling that would be limited only to California. As the two lawyers said, “We thought it was extremely important to put the entire panoply of the case before the Court. It was appropriate and necessary to paint the broad picture, and let the Supreme Court select the kind of decision within that range; we would like the decision to be as fulsome as possible.”
The brief did not argue that gays and lesbians have a constitutional right all of their own to marry; rather, it argued for marriage equality, contending that the Constitution means that marriage is a fundamental right that must be open to same-sex couples just as much as to any other loving and committed couple.
Eliminating Proposition 8 and its negative treatment of same-sex couples, the brief said, “would not require the recognition of a new right, but would instead afford gay men and lesbians access to the fundamental right to marry guaranteed to all persons.
Of course, the Supreme Court always has the option to rule narrowly.
The Prop 8 case (Hollingsworth) and the DOMA case (Windsor) are both important for same-sex equality. But of the two, I see Windsor as the most significant, because it squarely presents to the Court the question of the appropriate level of scrutiny for classifications based on sexual orientation. The Second Circuit ruled that the correct standard is intermediate scrutiny, meaning that the government bears the burden of justifying sexual orientation classfications by proving the existence of an important government interest, and that the classification is substantially related to meeting that interest.
If the Court affirms the Second Circuit on this reasoning, the implications for same-sex equality are profound. All laws drawing distinctions based on sexual orientation -- not just federal and state laws regarding marriage -- would have to survive this elevated standard of review. As Mano mentions, the Court might choose to rule more narrowly, holding, for example, that sexual orientation classifications within the context of marriage laws cannot satisfy the less demanding rational basis standard. Or the Court might end up avoiding the substantive issue entirely by disposing of the case on standing grounds. To make a long story shorter: Windsor gives reason for a broader ruling, where Hollingsworth does not. Oral arguments are scheduled for the end of March…stay tuned.
Pushing for a sweeping ruling could even conceivably be a strategy to make sure the court hands down the narrow California-only option. Playing hardball on the main points gives the court even more incentive to tap out on this one.
And I agree with drr1 that the DOMA case is likely to be more important, partly because the 9th Circuits odd-but-clever ruling gives SCOTUS so many ways to dodge the central question in the Prop 8 case.