“The most significant cases these 9 Justices have ever considered, and probably… will ever decide”

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.

Supreme Court on the day they heard Bush v. Gore (photo by John Aravosis)

Supreme Court on the day they heard Bush v. Gore (photo by John Aravosis)

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.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • Butch1

    What do they do but decide to not see the cases until possibly this Friday or perhaps, Monday if they get around to it. These folks are really enjoying delaying and keeping us second-class citizens for as long as they can drag this out.

  • Zorba

    I agree, k. I would have removed the exemption from paying taxes for religious institutions a long time ago.

  • http://adgitadiaries.com/ karmanot

    Yo Zorba! That’s more than an opinion. It’s rational and completely in synch with full civil rights, which has been my argument from the get go. I’d go farther though, and marginalize religious institutions at every turn, starting with tax law. Religions are by definition discriminatory and should only be protected by the right of free speech and none other.

  • Stev84

    That depends on the law in question actually. There are laws that specify which marriages are valid. Some will recognize any marriage, but others (like Social Security and veteran’s benefits) only recognize ones that are legal in one’s state of residence.

  • Stev84

    It’s already civil unions for all in a way. Marriage is an entirely secular legal contract. Religion has nothing to do with it. A big wedding is entirely optional. If you get married by a judge or justice of the peace you don’t even have to have a ceremony.

    Americans are just totally confused by this because somehow clergy have the authority to act as notaries. But they are optional.

  • rerutled

    Short answer: that question is not before the court.

    ==================================================

    Long answer:

    That question is not (necessarily) before the court in this batch of cases (unfortunately). The court can deny the Prop 8 cert, on the basis that states do have jurisdiction to decide conditions for marriage licensing, and that the Federal appeals court decided the case correctly, thus re-instating same-sex marriage licensing limited to California, without ever considering the question whether all states must do so, too. Even if they take up the Prop 8 case, the cert is written specifically to apply to California only.

    For the Federal DOMA cases, the question is even narrower: can the Federal Government deny benefits to individuals based on a licensing status which is determined by the states? Isn’t that encroaching on a state’s right? Again, the SCOTUS can decide that completely narrowly, without ever touching the question of whether or not all states must provide licenses to same-sex marriages.

    The silver-bullet question is not before the court: “Can a state deny a marriage license to a citizen who wishes the license for a same-sex marriage?” It is entirely possible the court take up that question in the Proposition 8 case, but it’s not what the cert demands. If the court does take up that question, then they must inevitably answer the question, “What is the difference between the class of same-sex couples and inter-racial couples, which would permit denying marriage licenses to the former but demands they be given to the latter?” Good freaking luck to Scalia on that that one. I would *love* to read his opinion on how originalism distinguishes between a class of people who were chattel, and one who weren’t even acknowledged to exist.

    But, again, unless the SCOTUS decides to expand the brief of questions before them, the most expansive ruling they will make by June is that same-sex marriages must be licensed in California, and then to strike down DOMA. All the states where same-sex marriages are banned, it will remain banned. Inevitably, the someone will bring a combination case where, (a) one couple gets married in Wasghington, has moved to a state where their marriage isn’t recognized (Missouri, say), and so demand access to all rights/benefits given to marriage couples under the Full Faith and Credit clause; and (b) another couple in Missouri demands that, if the California couple gets their marriage recognized by Missouri, then Equal Protection demands they also can have their marriage licensed.

  • Sweetie

    The point, as a poem:

    since gay people are gay
    they marry each other

    unless you live in
    theocratic fantasy land

  • Sweetie

    It’s certainly tilting the wrong way in Uganda and Russia.

  • Sweetie

    He’ll have to be pretty creative to find a way to repeal the 1st and 14th amendments.

  • http://www.facebook.com/thomwatson Thom Watson

    My understanding is that once the federal government recognizes your marriage as valid for the purpose of federal laws, it continues to recognize it as valid even if you move to a state where the state no longer recognizes your marriage as valid. It’s mostly only theoretical for now, since very few states go to the trouble of revoking marriage recognition for marriages they consider invalid (e.g., if a first-cousin married couple moves to a state where first-cousin marriage isn’t recognized, the second state usually won’t bother to do anything about it, even if they wouldn’t have let the two first cousins marry there), and since we don’t yet have federal recognition for our marriages due to DOMA. But once DOMA falls, it will be a very big deal, and you’re right that the federal recognition will become extremely important on the legal front as that barn door, since you could marry in a state that recognizes marriage equality, carry the federal recognition granted thereby to another state that does not recognize your marriage for purpose of state-level benefits, the opposite of what same-sex couples now experience.

  • http://www.facebook.com/thomwatson Thom Watson

    I think the “days” part of the statement is because no one wants to say something definitively that others can hold against them later. The truth is that the state is looking to move very quickly; San Francisco already has stated that they are printing the forms and will be ready. The Ninth Circuit decision says that the mandate has to be issued “immediately” once the Supreme Court rules, but none of us knows what “immediately” really means for the Circuit; we’re saying “days” only because we think it will be no more than 24-48 hours after the Supreme Court denies cert before weddings can begin, but it also could be the same day, if the Ninth Circuit does in fact react immediately.

  • Zorba

    I realize that, nicho. Doesn’t mean I like it or approve.

    “Marriage” is not the ideal. “Marriage” has historically long been a way to basically “sell” daughters for the dynastic or political or economic machinations/ambitions of the “patriarchs” of the clans or countries or families, and the hell with what the “bride” thought or wanted. Religion has been the way to give some type of state-sanctioned cover to these maneuverings.
    But this is what we’re stuck with, and I would certainly agree that the easier and quicker way would just be to recognize same-sex marriage.

  • nicho

    That’s what Brigham Young said: “Marriage is a civil contract.” Why do the Mormons hate Brigham Young?

  • Sweetie

    Goldstein’s analysis is flawed and reflects the false objectivity that is so popular.

    “The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.”

    He clearly doesn’t understand that history is not a flat blob. We have the 14th amendment now. It says all citizens have the same rights, rights no state can take away. Since gay people are gay, they marry each other.

    That’s it. There is no subjectivity involved here. There is nothing to debate, because we are not a theocratic society. We can’t just pretend gay people don’t exist because certain religious elements want to.

  • nicho

    The problem is that hundreds of laws use the word marriage to confer rights and benefits. For equality, every one of those laws would have to be rewritten. It would be easier and cheaper to just recognize same-sex marriage.

  • http://www.rebeccamorn.com/mind BeccaM

    My wife and I already had that wedding. We just want the legal recognition for what we’ve considered a marriage since December 1998.

    So if PropH8 is overturned and Cali starts granting licenses, we’ll probably go back there — since we have lots of friends who’d put us up for a few days — and just file the paperwork. Anything else — a big party or wedding ceremony — would feel redundant and pointless.

    Frankly, I’d be happy enough if we could just write the California Domestic Partnership registry and assent to them converting our DP into a legal marriage. State law already requires us to go through divorce court if we were to separate (not that that’s likely).

  • Zorba

    This country really needs a “Loving v. Virginia” decision for same-sex marriages, but I really don’t think it’s going to happen. Not with this Supreme Court, and probably not in my lifetime. Sadly, but I would be absolutely thrilled to be wrong about this.

  • http://www.rebeccamorn.com/mind BeccaM

    I’ll be honest and admit I have no idea what this court will do or decide. It could be a monumental landmark decision. Or a muddled mess of a decision. Or a partial or total punt. Or a truly awful decision, like the ones where they upheld DADT against its challenges.

    Kennedy lately has been the consistently pro-LGBT vote on the court, often to the point where I wondered if Scalia was risking a stroke in his turgid and fevered dissents.

    Funny story, related to our upcoming home purchase: The title application paperwork had language in there where my wife and I had to put down information about our marriage status. We live in NM, which doesn’t recognize SSMs; but according to California, we are married (DP’d actually) and a casual search of public records would reflect this fact. I couldn’t say we were single because according to CA law, we are ineligible to marry anyone else unless/until we get divorced — and this holds sway in the other states that recognize CA’s DPs as equivalent to marriage. So I had to be honest and tell all this to the Title company, that even though they might by law have to put us down as unrelated, the legal reality is my wife and I couldn’t just abandon our legal relationship under CA law and pretend it doesn’t exist.

    Anyway, this legal swamp is ridiculous and unsustainable. But I’m with you in hoping this gets decided — positively — and soon. We’re both getting older and literally do not have that many more years we can wait.

  • Zorba

    Civil in all its constructs, indeed. Joining two powerful families together, or avoiding warfare between two families/clans/countries, or all of the myriad other reasons.
    “Religion,” as such, is just the excuse for such activities.

  • http://www.rebeccamorn.com/mind BeccaM

    Perhaps, but do the Feds recognize the marriages legally performed in the states that allow it? Do they still recognize them if, say, a couple marries in Iowa but lives in Texas?

    Federal recognition is the proverbial barn door. Once that’s open, the legal standing in the no-recognition states becomes increasingly shaky. Equal protection, full faith & credit and all that.

  • caphillprof

    Marriage was always a civil construct. Religion was Johnny come lately.

  • MyrddinWilt

    I think that’s the point. Marriage vs civil unions is an issue in the US because the haters exist here and the constitution allows state governments to do really shitty hateful things. So the difference between the two did not really matter in the UK but it mattered a great deal in the US.

  • MyrddinWilt

    As I said, I am sure that those cases will be dealt with. The governor of CA is on our side. If there is a good reason to get someone to the front of the queue then it can be made to happen.

    The problem is that the proposition was a known quantity with known effects. If the case is taken the court won’t tell CA the decision in advance to allow them to plan and it might not be a simple up/down decision. If cert is denied (my expectation) the day on which it is denied won’t be known until the judges have made their decision to deny.

  • Zorba

    Yes. Get the various churches, or whatever, out of the legal ramifications.

  • Zorba

    Exactly, Naja. But I think that this country is way, way far from this opinion, unfortunately.

    And, in fact, if people want to go back in history, although there has been the idea of “marriage” solemnized by the appropriate “religious authorities” for a long time, “marriage” itself has long been more of a practical construct in many societies, rather than some kind of solemn, so-called “holy” religious thing. Marriages for economic purposes, marriages for political purposes, marriages for social purposes. Marriages to unite adjoining properties. Marriages to solve political disagreements. And on and on.

    Let’s just get the whole religion thing out of it, and make it an economic and legal thing.

    Personally, I would love to attend a “wedding” ceremony officiated by someone who is a devotee of the Flying Spaghetti Monster. I would expect some really, really good pasta at the post-nuptial celebrations. ;-)

  • PeteWa

    I would be fine with the government redefining all marriages as civil unions. Many churches already do perform SS marriages for those of a religious / spiritual bent.

  • Naja pallida

    That’s always been my thought. Completely and utterly remove the religious and moral aspect of it, and reduce it right down to a civil contract between people. If they want to do something in a church and call it marriage outside of that, fine, that’s their prerogative… but the only thing government should be concerned with is the legal aspect, not the sexual or religious one.

  • FLL

    It seems that the last freedom that was lost is the first freedom to come back, and the first freedom that was lost is the last to come back. When the bigoted Christian sons of Constantine I took over the Roman Empire in 337 CE, same-sex marriage was the very first thing they made illegal, on pain of death. It was only around 400 CE that it became mandatory for Roman soldiers to be Christian, and by extension, accept Christian sexual taboo. (Meanwhile, 1600 years later…) DADT fell first, which is being followed by an end to the ban on same-sex marriage. After 1600 years, I believe the Christianist bigots have worn out their welcome. I hope they don’t let the door slam their ass too hard on the way out.

  • Zorba

    Well, as far as I’m concerned, Pete, I would just eliminate the whole “marriage” thing from the legal discussion. Civil unions for all, and I would certainly include all the many, many rights currently accorded those who are now “married” under the law.

    “Marriage” to me is a religious construct, and we need to get beyond this whole religious meme. Any two legal adults, regardless of gender, who want to enter into a civil union should be absolutely legally entitled to do so in each and every state and for every federal purpose. (In fact, I would not even have a problem with polygamy and polyandry, as long as everyone involved was an adult and of sound mind and knew what they were getting into, but I realize that this country is way, way far from that idea.)

    If the couple in this civil union wanted to go to some religious authority and have their union solemnized afterwards, then more power to them. They could go to their local church, temple, synagogue, mosque, or clearing in the woods, I don’t care, and have their favored ceremony. It should have nothing to do with the state.

    But that’s just my opinion. ;-)

  • benb

    I bet Scalia is busy writing his opinion (and Clarence Thomas’s) at this very moment–leaving same-sex marriage up to individual states.

  • PeteWa

    “If you want a wedding and not a civil union then do it right.”
    the only reason I would want a marriage rather than a civil union is for the roughly 1,500 different rights afforded to the former that the latter does not include. the party that you are talking about can be planned for either occasion, or not, as taste, inclination and reasons for getting married differ from couple to couple.

  • nicho

    Then there are the people who may not have time to plan a big bash. I have a friend who would like to marry his long time partner for legal and financial reasons. Right now, they don’t think he’s going to live past Christmas. He’ll forego the cake and flowers to make sure his partner is provided for.

  • MyrddinWilt

    OK, so a gay man is going to get married to another gay man and you think that they can decide on the cake and the venue and what to wear in less than a month? It takes straights half a year and the aesthetic standards that they are expected to meet are rather lower.

    Once Prop h8 falls, its over, people can have actual like weddings and not part political events, well not unless they want to.

    There will be some folk off to be the first people to get hitched and there will be the couple who gets married with one partner on the death bed and so on. But thats all stuff that can (and will) be taken care of by governors decrees etc.

  • MyrddinWilt

    If the court decides not to take the Prop-8 case it would be a pretty big indication that there isn’t a majority for the bigots on the rest.

    I really don’t care how historic the decision is, all that matters is that it is decided the right way. And I suspect the decision is only going to be considered historic if they blunder and decide the wrong way. Then the decision is going to be regarded as the last gasp of the segregationist bigotry which was itself a codicil to the civil war. Roberts is going to have to pen some really fanciful excuse to explain why Texas does not have to recognize a mariage performed in MA.

    Native Americans only got the right to practice their religion under Carter but that isn’t ever mentioned today because it isn’t an issue. There isn’t going to be a DOMA-II if it is struck down. There isn’t going to be any new law either, what part of full faith and credit don’t the bigots understand?

    What might come out is that the justices strike down DOMA with a reasoning that forces every other state to recognize and permit SSM. The big problem for the court is that SSM exists in some states which forces other states to deal with the consequences. For example, divorces. The Texas courts have to work out how to untie an SSM. The court cases are going to keep coming up regardless.

    There obviously isn’t a legal theory on which the court could bar SSM. If they tried it would likely lead to a revolt at the state court level, just as Citizens United has. The Supreme Court can only lead if the other courts are willing to follow. Lacking a method to bar SSM, the only way to achieve consistency is if every state is required to permit SSM. I don’t see the Republicans on the courts going that far.

    This is not the monumental decision, the ACA decision was. If Roberts had decided the other way on ACA it would have blocked universal health care for another generation. It is obvious that whatever decision is taken this time round, the bigots are only one coronary away from defeat. Fat Tony and Kennedy are both getting on, Thomas is not exactly fit. GOP prospects for getting the WH are looking bad for 2016 and improving them in 2020 will very definitely require a move to the sane ground on social issues.

    It is quite easy to imagine a court in the not too distant future where Alito and Roberts (or Judas as the wingnuts now call him) are the only right wingers.

  • Indigo

    “But the arc of history tilts towards equality and justice” . . . for now. It sometimes tilts in other directions. If it is true that it is a curse to wish “Interesting times” then we are indeed cursed. These are the most interesting times since the Emperor Constantine informed the Senate that the Olympian gods and their lovers, male and female alike, were being replaced by the Nazarene and his followers. That’s almost 2 millennia of Christian-sponsored homophobia being called to account. It’s been a long time coming . . .

  • basenjilover

    anxiously waiting and waiting for news… good grief!

  • nicho

    would lead to same-sex couples being able to marry in California within days.

    Interesting that the ban went into effect before they had even counted all the ballots, but reversing it will take “days.” Not a big deal, but still showing how eager some people are to take rights away, but not so eager to restore them. In fact, the online version of the CA constitution was changed within hours of the call being made that Prop H8 had passed.

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