At 10am ET, the Supreme Court may make history – good or bad – on gay rights

We’re only hours away from a momentous day at the Supreme Court, when decisions on the anti-gay Defense of Marriage Act (DOMA) and Proposition 8 are expected at 10am Eastern.

The court will either do something good, something bad, punt the issue all together, or possibly even put it off until the fall.

Supreme Court via Shutterstock

Supreme Court via Shutterstock

I remember I was in law school at Georgetown in 1986 when the court decided Bowers v. Hardwick, ruling that state laws against sodomy – which were usually enforced against gay people, and sometimes only written about gay people – were upheld as constitutional.  I was still closeted, but I was definitely gay.  And it was very weird studying a case that applied to you, and basically ruled that you were somehow “less” than other Americans.

Reading Bowers v. Hardwick in 1986 gave me a small window into what it might have been like for African-Americans in the 1950s and 1960s to have to wait for their government’s stamp of approval of their humanity.

What to expect at 10am ET

So, what to expect at 10am Eastern today when the Supreme Court releases its final opinions (aka decisions) for the year?  Most of us expect that they’ll release the DOMA and Prop 8 decisions.  But as I’d written earlier, it’s not unprecedented for the court to hold off on releasing a particularly tough decision until the next session – they did just that with Brown v Board of Education and Roe v Wade.

Still, it’s rare.  As for what to expect at 10, first thing, think about health care reform. Practically no one expected the decision the court came out with – all of us were expecting it to be struck down.  So, I’ve learned not to “expect” anything from the court.


Having said that, look back at the oral arguments that took place before the court in March, and the analysis then was that “DOMA is in trouble.” Though it’s still possible that the court could kick the case out entirely for lack of standing.

A quick refresher.  The Defense of Marriage Act does two things. It forbids the federal government from providing any of the over 1,100 federal benefits of marriage to gay couples, even if they’re legally married.  This affects gay couples on their taxes, with Social Security, with immigration, and practically every agency.  The second thing DOMA does is make it so that no state is forced to recognize the legal gay marriage of another state.  Section 3 of DOMA, the part about benefits, is the one in question today.

CNN’s Jeffrey Toobin does a great job explaining the oral arguments on DOMA, and the overall issue of DOMA. It’s a great primer to watch before today’s rulings:

Proposition 8

Proposition 8 is the people’s proposal in California that passed in November, 2008, and repealed that state’s law making gay marriage legal.  At the point the law was repealed, 18,000 gay couples had already legally wed, and their marriages remained in tact. I can’t imagine that, if the court decides this case on the merits, that isn’t going to be a significant part of the decision.

Prop 8 also has a standing question, which might mean, again, that the court may not even rule on the merits.  From Scotusblog:

Kennedy told him bluntly to “address why you think we should take and decide this case.”  And with that, the Justice may have confirmed that the real question before the Court is not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all – a prospect that would be (to say the least) anticlimactic but seemed to be a real possibility by the end of the morning.

More from Scotusblog on what to expect:

Given the shifting alliances on view at the Court today, and the overall lack of enthusiasm on the part of some Justices for deciding the case on the merits, the Justices’ Conference later this week – at which they will vote on the case – promises to be an interesting one.  Will at least five Justices join forces to hold that the proponents lack the right to defend the initiative at all?  Will they instead decide that even if the proponents have that right, the time is not right to decide the merits of the case?  Or will they go ahead and reach the merits after all?

Depending on the answers to those questions, the case could proceed in several different directions.  If at least six Justices conclude that now is not the right time to rule on the constitutionality of Proposition 8, they could “DIG” the case – dismiss it as improvidently granted.  If that happened, the lower court’s ruling striking down Proposition 8 would stand, but it would have no real significance outside of California.  Getting to that result would almost certainly require the Chief Justice to join forces with Justices Kennedy, Ginsburg, Breyer, and Sotomayor; nothing that we heard today provided any reason to believe that Justices Scalia, Thomas, or Alito would vote to dismiss the case.  In this scenario, Proposition 8 would be invalid, but another lawsuit – for example, brought by a Californian who opposed same-sex marriage – could eventually follow and reach the Court at a later date.

If the Justices do decide the case, they could vote in any number of ways, and so it’s hard to predict how the case will play out:  the Court could ultimately rule that Proposition 8 is invalid (for a variety of different reasons), or it could hold that the proponents lack the right to defend the initiative but set the stage for a new challenge later on.  Or they could surprise us all and simply send the case back to the lower courts for those courts to weigh in based on the Court’s decision in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, in which it will hear arguments tomorrow.  But in all events, it is difficult to count five votes in support of an opinion that reverses the court of appeals outright and holds that Proposition 8 is constitutional; Justice Kennedy seemed to be looking for a strategy to avoid that result.

There’s lots more, but that’s a good start.

See you at 10am Eastern!

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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