Some time either today, or over the next few days, the Supreme Court will decide which gay marriage cases it is going to hear.
SCOTUSblog publisher Tom Goldstein on the significance of the court taking up the issue of gay marriage.
At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.
The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided. In 2012, it is ridiculous to believe that the government could ban inter-racial marriage. But that was the law in much of the country for most of its history. In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.
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.
Chris Geidner at Buzzfeed has a nice summary of the four most likely outcomes from the court today (or in the next few days):
• The court takes multiple DOMA cases and the Proposition 8 case. This outcome would be the “all in” option, and it would make clear that at least four justices want the court to resolve the legal questions surrounding these issues, from what level of scrutiny that laws classifying people based on sexual orientation should be given to whether gay couples have a constitutional right to marry. (The DOMA cases also feature the unusual circumstances, in place since February 2011, of the Obama administration opposing the law’s constitutionality and the House Republican leadership defending the law.)
• The court takes one DOMA case, while holding the other DOMA cases pending that decision, and takes the Proposition 8 case as well. This is not very different from the first possibility, although the choice of one DOMA case over another could be seen as narrowing the type of argument about the law that the court would like to hear. More likely though, it would simply be a sign of the justices having picked a case in which Justice Elena Kagan, who served as the top appellate lawyer in the Obama administration before joining the court and may choose to recuse herself from one or more of the DOMA cases because of that, can participate.
• The court takes a DOMA case (or multiple DOMA cases) and holds the rest of the cases, including Proposition 8, pending the outcome of the DOMA case. This prospect, advanced as a possibility by Georgetown law professor Nan Hunter, could be taken by a cautious court, wanting first to resolve some general questions — including the level of scrutiny to be applied to sexual orientation classifications — before acting on the other, more direct, question about whether same-sex couples have a constitutional right to marry that is raised in the Proposition 8 challenge. This, as with taking the Proposition 8 case, would delay when same-sex couples in California might be able to marry.
• The court takes a DOMA case (or multiple DOMA cases), but denies certiorari in the Proposition 8 case. This option, once considered by advocates to be the most likely possibility, would lead to same-sex couples being able to marry in California within days. The Ninth Circuit’s ruling in the case did not broadly resolve the marriage question, instead holding that Proposition 8 was unconstitutional because it took back rights formerly held by Californians. As there are other cases in the legal pipeline about same-sex couples marriage rights that could make their way to the Supreme Court, the court could decide to let the narrow Ninth Circuit decision stand.