It has been said that there's nothing more powerful than an idea whose time has come. Every few generations we see evidence of this phenomenon play out organically in America as the constitutional rights of the people are first questioned, then debated, and finally weighed before our nation's highest Court. Sometimes the Supreme Court tampers America's enthusiasm to expand a constitutional right beyond the status quo. Other times, however, the Court finds itself making what is later judged by history as a "landmark" ruling which changes the very identity of the nation itself. When America was founded, the right to vote was limited to White male property owners; today that right is no longer conditioned on race, gender or property ownership. During America's early years, "separate but equal" was the widely accepted and prevailing view when it came to segregation in our society; generations later that notion was overruled by the Court in Brown v. Board of Topeka Education. As late as 1967, some states in this country had laws on the books which made it illegal for Blacks and Whites to get married; that idea was thrown out by the Court in Loving v. Virginia. And marriage itself has long been defined in America as a fundamental right between a man and a woman, but this week the Supreme Court is hearing a pair of cases (Hollingsworth v. Perry and United States v. Windsor) that could change that definition to include same-sex couples.
The two cases before the Supreme Court this week take up two different issues facing same-sex marriage: (i) whether a state (in this case, California) can pass a law banning same-sex marriage; and (ii) whether the federal government can refuse to give federal benefits to same-sex marriages. So both the state and federal aspects of same-sex marriage are being considered this week by the Court.
THE STATE ISSUE:
As you may recall, in 2008 when Barack Obama was first elected as our nation's 44th President, the people in the state of California voted in favor of a state-wide ballot initiative known as Proposition 8 ("Prop 8"). In short, Prop 8 added an amendment to the California state constitution which stated that "only marriage between a man and a woman is valid or recognized in California." After this amendment was adopted to California's constitution, Kristin Perry and Sandra Stier, among thousands of other same-sex couples, were denied a state marriage license. Perry and Stier sued the state of California but Governor Schwarzenegger and his attorney general, Jerry Brown, refused to defend Prop 8. Mr. Brown was later elected Governor of California along with attorney general Kamala Harris and both of them refused to defend Prop 8. Finally, a group known as ProtectMarriage.com intervened, and the court allowed their leader, Dennis Hollingsworth, to take the place of the State of California in defense of Prop 8. On August 4, 2010, the federal district court in northern California found Prop 8 to be an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. On February 7, 2012, the federal 9th Circuit Court of Appeals upheld the district court's decision.
THE FEDERAL ISSUE:
In 1996, President Clinton signed into law the Defense of Marriage Act ("DOMA"). Section 3 of DOMA established that only state marriages between a man and a woman are eligible to receive federal marriage benefits, such as Social Security, Medicare, joint federal tax filings, etc. So even though marriage licenses are granted at the state level, the federal government decided to take the position that it would only recognize those marriages granted between heterosexual couples. In 2007, two female New York residents, Edith Windsor and Thea Spyer, got married in Canada. Although New York had not yet adopted same-sex marriage in 2007, it did recognize same-sex marriage licenses from other jurisdictions. In 2009, Thea Spyer died and Edith Windsor was required to pay over $363,000 in federal estate taxes that she would not have had to pay if Section 3 of DOMA did not prevent the federal government from recognizing same-sex marriages. Windsor sued the federal government in the federal district court in New York City and, on June 6, 2012, that court ruled that DOMA's Section 3 was unconstitutional under the equal protection guaranties in the Due Process Clause of the 5th Amendment. On October 18, 2012, the federal 2nd Circuit Court of Appeals upheld the district court's decision.
THE ARGUMENTS BEFORE THE COURT ON PROP 8:
Democrat David Boies and Republican Ted Olson -- who had battled against each other before the Supreme Court in the infamous case Bush v. Gore which decided the 2000 election -- teamed up together here to argue on behalf of the same-sex couples. Their argument was a simple one: the Constitution's Equal Protection Clause requires same-sex couples to have the same fundamental right to marriage as heterosexual couples. Attorney Charles Cooper argued on behalf of Prop 8. Per ScotusBlog:
Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.
So even though Mr. Cooper struggled (and I mean STRUGGLED) to find a legitimate reason as to why same-sex marriages should not be allowed, this particular case could ironically end up being tossed out because both the previous and current California attorneys general refused to defend Prop 8 when the law suit was first filed, which created an issue as to whether the ProtectMarriage.com group -- made up of private citizens -- actually had standing to appeal this case to the Supreme Court in the first place. If the Supreme Court rules that that group lacks standing, then the 9th Circuit Court of Appeal ruling -- which found Prop 8 to be unconstitutional -- will be upheld. If the Supreme Court does find that standing exists, then it will be forced to rule on the merits once and for all whether state laws banning same-sex marriage are unconstitutional or not. Based on the questions asked during oral argument, it sounds as though the Justices, if pressed to pick a side, would rule against Prop 8 but would limit their ruling to apply to the State of California only (as opposed to applying to all 50 states as many same-sex marriage advocates are hoping for).
To summarize, the Supreme Court has a few options on this case:
- Option 1: they can find that the Protect Marriage group has no standing and dismiss the case. If that happens, then the ruling of the district court will stand. The district court ruled that Prop 8 is unconstitutional for California ONLY. So in other words, by finding that the defendants have no standing, the case is limited to California only.
- Option 2: they can find that there is standing, uphold the district court's and the 9th Circuit's ruling that Prop 8 is unconstitutional, but limit the ruling to California only.
- Option 3: same as Option 2 but instead of limiting the ruling to California only, they can broaden the ruling to include ALL 50 states.
- Option 4: find standing and uphold Prop 8.
THE ARGUMENTS BEFORE THE COURT ON DOMA:
As of the writing of this post, the Court has not yet heard the arguments on the DOMA case, but the questions asked during that oral argument will give us some insight into both cases. If the Justices rule against Section 3 of DOMA, there are two ways that they can do it: (1) they can find DOMA unconstitutional on equal protection grounds of the 5th Amendment; or (2) they can find DOMA unconstitutional on states' rights grounds of the 10th Amendment.
If the Justices' questions focus on whether or not DOMA violates the 5th Amendment, then that would tend to suggest that the Court finds both DOMA and Prop 8 unconstitutional because it unjustly discriminates against same-sex couples.
If, on the other hand, the questions focus on whether or not DOMA violates the 10th Amendment, then that would tend to suggest that the Court is going to punt on the Prop 8 case (ie. the equal protection issue) and leave the definition of marriage up to the states.
[EDIT @8:30pm] - We called it here first, folks! Justice Kennedy, the "swing" voter on the Supreme Court between the Court's 4 conservative and 4 liberal justices, indicated today with his line of questioning that he is leaning towards striking down DOMA on 10th Amendment state's rights grounds. What that means in plain English is that the Supreme Court is dodging the real issue of whether same-sex marriage is entitled to equal protection under the law. By choosing to strike down DOMA on 10th Amendment grounds in the federal case, the Supreme Court will likely pass on ruling on Prop 8 in the state case.
So what happens now? The Supreme Court will go back and deliberate for a few months and then issue their ruling sometime around June. If we're reading Justice Kennedy correctly here (and we'd like to think that we are), the Supreme Court will dodge the 14th Amendment Equal Protection issue in the state case and find that the Protect Marriage group in California has no standing to appeal the district court's ruling. That will mean that the district court's ruling, which found Prop 8 unconstitutional for the state of California only (not for all 50 states), will become the rule of law in California. Similarly, the Supreme Court will dodge the 5th Amendment equal protection issue in the federal case by striking down DOMA on state's rights grounds. That will mean that the federal government will be prohibited from imposing its view of marriage on the states. The states, on the other hand, will still be free to discriminate against same-sex couples as they see fit.
Give us your thoughts.
Should same-sex marriage be legal? Why or why not?
Is there a legitimate government-based interest -- not to be confused with a religious-based interest -- why same-sex marriage should be banned?
With respect to Prop 8, will the Supreme Court uphold it, strike it down, or punt on the issue?
Should a state be allowed to put our constitutional rights up for a vote on a state ballot?
With respect to DOMA, will the Supreme Court uphold it or strike it down?