There has been a lot of chatter in the media recently about the upcoming oral arguments before the US Supreme Court on March 26 and 27 on two cases involving same-sex marriage. Hollingsworth v. Perry concerns California’s Proposition 8 that banned same-sex marriage but was later overturned by the courts. The second is United States v. Windsor that challenges the constitutionality of the Defense of Marriage Act (DOMA). While these cases are undoubtedly important and interesting, their long-term effects are not as significant. The reason is that same-sex marriage is coming and the only question is whether it comes soon or sooner and the court cannot stop it.
If one looks at the range of possible rulings that could emerge from the two cases, the best result would be that the Supreme Court rules broadly that bans on same-sex marriage are unconstitutional. That would immediately settle the legal issue, though there will be political and religious grumblings for some time. The worst result would be that the court rules that Proposition 8 and DOMA are both constitutional.
Within the parameters of these cases, there seems to be no possibility that the courts could rule that same-sex marriage is forbidden altogether. So at the most the court could slow down the process and that too only for a short while, since public opinion is shifting so rapidly. If same-sex marriage doesn’t come about via the courts, it will via the legislatures or referenda.
The latest Field Poll finds that in California support for same-sex marriage has jumped to a margin of 61-32%, a remarkable shift considering that Proposition 8 passed in 2008 by 52-48%. Similarly more and more Republicans are coming out in support of same-sex marriage, making the repeal of DOMA increasingly likely even if it is ruled constitutional. Over 100 prominent Republicans have signed on in support of overturning Proposition 8, including Meg Whitman who campaigned for it when she ran for governor of that state as recently as 2010.
All these public reversals are pretty sudden but Whitman’s is the most dramatic. It is possible that she was a secret supporter of same-sex marriage all along but was cynically opposing it to win as a Republican. But it is also possible that for many of these people we are seeing ‘the emperor’s new clothes syndrome’ in action. It is possible to sustain a belief in something that has no rational foundation as long as everyone around you thinks similarly. But as soon as that cocoon starts to crumble, the nakedness of one’s position becomes suddenly apparent and embarrassing. There was never any rational basis for opposing same-sex marriage and this realization may have come quite suddenly to many of these people.
It is possible for the same thing to happen with religion. There is no rational basis for it either and it too has the potential to collapse suddenly except that that cocoon will be harder to pierce since, unlike with same-sex marriage, massive international organizations have a deep vested interest in maintaining the illusion and fleecing their flock.
I somewhat expecting that DOMA, as applied to federal benefits, will be struck down… but the provisions allowing states to refuse to recognize marriages conducted outside their borders to be left in place.
Prop 8 is harder to figure. It’s difficult to come up with a narrow decision they could make which would apply strictly to the Prop 8 circumstances, and not to gay marriage in general. The only thing I could come up with would be ruling the proposition system as an unconstitutional subversion of the requirement for state governments to be republican(I’ve seen this suggested a few times), and that opens up huge cans of worms in most states on a dizzying array of issues. I’d expect SCOTUS to avoid going there if they have any way of deciding the case without it. Prop 8 is going to be all or nothing I think. And the court is conservative enough that this scares me.
gworroll
SCOTUS has a fairly easy “out” on Prop 8, and a medium fallback position.
The out is to find that the proponents have no Article III “standing.” That would mean, essentially (IANAL) that Judge Walker’s decision stands, but since District-Court decisions can’t be used for precedent, that would minimize any of what the conservatives might see as “damange” to California.
The medium position would be to accept the 9th Circuit’s ruling (one much narrower than Judge Walker’s) and (again) allow marriage equality to go into effect for California only.
No matter what, it seems that even the most hidebound (but sane) conservative can see that California would overturn Prop 8 in two seconds by any referendum that takes place in 2013 or after. Mano is right in the OP that the court can do very little, at this point, to stop marriage equality in California
pH
I agree with your argument that “same-sex marriage is coming and the only question is whether it comes soon or sooner and the court cannot stop it.” But marriage equality is really only part of the picture here. The bigger question -- and one that does hold much significance for the future -- is what standard of review will be applied to government classifications based on sexual orientation.
As it stands now, sexual orientation classifications are reviewed using a standard called rational basis scrutiny. See, e.g., Lawrence v. Texas. On this standard, the challenger bears the burden of proving that the government has no legitimate interest to justify the classification, or that the classification does not rationally relate to achieving some legitimate government interest. On rational basis review, the constitutionality of the classification is presumed, and the challenger bears a heavy burden to overcome this presumption.
In Windsor, the Second Circuit ruled that rational basis review wasn’t the correct standard to use. Instead, it ruled (and the Obama administration agrees) that the correct standard is something called intermediate scrutiny. On intermediate scrutiny review, the government bears the burden of proving that it has an important (not merely legitimate) interest to justify the classification, and that the classification is substantially related (not just rationally related) to achieving that interest. This standard is nowhere near as deferential as rational basis scrutiny, and as mentioned, it is the government’s burden to sustain.
If the Court (and particularly, Justice Kennedy) agrees with the Second Circuit and intermediate scrutiny becomes the controlling constitutional standard, this will be a very important development. To date, only two other classifications have been found to require intermediate scrutiny -- gender and illegitimacy. Recognizing a new quasi-suspect classification is a huge deal, something we’re not likely to see again in our lifetime. It means that all government classifications on the basis of sexual orientation -- not just those related to marriage -- must meet this standard. In short, recognizing sexual orientation as a quasi-suspect class would be an important step toward true equality for gays and lesbians; indeed, the importance of that development would be difficult to overstate.
It is possible, of course, that the Court will go in another direction. It might reaffirm that the standard is rational basis review, and on that basis, either strike or uphold the discriminatory laws at issue in these cases. Or the Court might avoid the substantive issues completely, and dispose of one or both cases on standing grounds. Only time will tell.
Thanks so much for that clarification. It is a subtlety that I had not been aware of.