It all might start to change this week.
Today and tomorrow are the days that marriage equality supporters have been waiting for, when the Supreme Court takes on the issue in two separate cases.
On Tuesday, the court will hear one hour of testimony on California’s Proposition 8 case, formally known as Hollingsworth vs Perry. On Wednesday, the justices will devote 110 minutes to hear arguments on the so-called federal Defense of Marriage Act, United States vs. Windsor.
LGBT rights supporters and detractors were lining up as early as last Thursday to be in the courtroom for the arguments.
We wondered what specific issues the justices would be looking at in the two cases, and what possible outcomes the justices may decide.
Let’s take Prop 8 first
According to Geoffrey Stone, an expert on constitutional law and former dean at the University of Chicago Law School, the court will likely make one of four decisions in hearing Prop 8 on Tuesday:
1) Not hear the case
2) Agree with the opinion of Judge Stephen Reinhardt of the Ninth Circuit, which would limit the decision only to California
3) Rule Prop 8 unconstitutional, but only in states where marriage is currently legal and states that already give LGBT people some protections – like civil unions or domestic partnerships
4) Rule Prop 8 unconstitutional in total – meaning LGBT people have a right to marry everywhere U.S. law is applicable
Stone thinks the last scenario is unlikely, given the makeup of the court and recent suggestions by liberal Justice Ruth Bader Ginsburg that the Supreme Court may have “moved too far too fast” in the 1973 Roe vs. Wade case, thus giving rise to the bitter divide over abortion that still rages 40 years later.
The second option – agreeing with the lower court’s decision – would slow down the process, by ruling Prop 8 unconstitutional only on the grounds that when a state has already legalized marriage equality, it can’t take that right away. That is the ruling the Ninth Circuit made in February of 2012 in deciding the Prop 8 case. Judge Reinhardt specifically declined to consider whether same-sex marriage is constitutional, ruling narrowly on the ability of states to take away rights it has already granted. Since California is the only state in the country that has granted LGBT couples the right to marry, then taken that right away, California only would be affected by this decision.
The second option is also more in line with a decision Justice Anthony Kennedy wrote in1996 striking down Colorado’s Amendment 2, which the court said discriminated against LGBT people and therefore violated the Equal Protection Clause.
The third option, Stone thinks, is the most likely – that states that recognize same-sex couples on some level have to recognize marriage. Some legal watchers have dubbed this the “eight state solution,” in that it would automatically legalize same-sex marriage in eight states – Illinois, Nevada, New Jersey, Oregon, Rhode Island, Delaware and Hawaii – but it wouldn’t hold marriage legal in states such as Mississippi or Utah, which have constitutional amendments banning same-sex marriage.
It will now also include Colorado, which passed a civil unions law this past Thursday. Stone said that the decision to grant LGBT couples some rights in Colorado will, if the third option is adopted, trump the constitutional amendment banning marriage equality the state passed in 2006.
So, if the third option prevails, and the Court rules Prop 8 unconstitutional, but only applies it to states that have marriage laws already or states that have some same-sex couple protection, that will be 19 states, plus the District of Columbia, where same-sex couples can get married.
This is exactly the outcome that the Obama administration has argued for the in its amicus brief to the court.
“It’s an intermediate step for the courts to eventually invalidate the laws against same-sex marriage,” Stone said. “The Justices might want to go slow – even though the majority of people favor same-sex marriage, there are states in the union which would consider it an outrage.”
Of course, the court may simply decide that there is no case to be made. In both Prop 8 and DOMA, Stone pointed out, “the State of California and the Justice Department have been clear that they think those laws are unconstitutional.” That means that a government entity is not arguing against the issue at hand. In the case of Prop 8, California is not defending the state law. The justices may decide that since a government is not arguing for its own law, then the Court will not hear the case.
Marriage equality advocates don’t want that scenario, as it would allow the Ninth Circuit decision to stand – which only rules that LGBT people can get married in California.
Now let’s look at DOMA
The Justices will also decide if those that are arguing for the so-called Defense of Marriage Act have legal standing to do so, given that the Obama administration is not defending the law.
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Two lowercourts last year ruled DOMA unconstitutional, so if the justices don’t hear the case, those rulings will stand and the federal government will give the same benefits to same-sex married couples as it currently does to opposite sex married couples.
There’s also the possibility that the Court will rule that DOMA is constitutional.
“I think that’s highly unlikely,” said Stone. “I don’t think there’s any scenario in which Anthony Kennedy would do that.”
Stone believes that Kennedy wants to write these opinions affirming some constitutionality of marriage equality. And he believes that Kennedy wants to write the next opinion – in a few years – legalizing same-sex marriage for all states.
DOMA, he thinks, will be struck down, both because “Kennedy will be skeptical of denial of same-sex marriage” and because of the issue of whether the Federal government has any business telling people who they can marry. That, Stone asserted, could possibly be the issue that draws Chief Justice John Roberts to vote for striking DOMA down as well.
If DOMA is struck down, it will mean that LGBT couples will be afforded the approximately 1,100 federal benefits that opposite sex couples already get. It will not mean that states that don’t honor marriage equality will have to recognize same-sex marriages performed in other states. That’s an issue pertaining to the Full Faith and Credit clause of the constitution, which deals with contract law.