This week — probably Thursday — the Supreme Court of the United States (SCOTUS) will release its opinion on two cases dealing with same-sex marriage.
One case challenges the constitutionality of the Defense of Marriage Act (DOMA). Section III of DOMA prevents the federal government from treating same-sex couples (those legally married under state law) as "married" for the purpose of federal law . For example, someone who is legally married to a person of the same sex cannot currently receive spousal Social Security benefits should his or her spouse die. This is, according to DOMA opponents, unconstritutional discrimination.
The second case concerns Prop 8 in California. Prop 8, as you recall, was a statewide referendum banning gay marriages in California, passed by the people of California. The district court and the appeals court both held that Prop 8 violates both the U.S. and California Constitutions. There was also the thorny issue that some same-sex couples in California had already become married in that state before Prop 8 passed.
Both cases, taken together, give the Supreme Court a chance to address gay marriage. Months ago, I gave a summary of possible outcomes:
Taken together, I suspect there are five possible outcomes:
(1) SCOTUS will kick the can down the road. It is possible, though I suspect unlikely, that both cases will be disposed of on issues other than the merits. For example, there is a standing issue in the Prop 8 case ("standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place). Conceivably, the court could rule on that, and never reach the merits. The DOMA case has a standing issue as well.
(2) SCOTUS would allow each state to decide whether or not to allow same-sex marriages, and force the federal government to accept it only where states accept it.
(3) SCOTUS would allow each state to decide whether or not to allow same-sex marriages, but the federal government does not have to accept it. Basically, a ruling like this would say that same-sex marriages are not protected by the U.S. Constitution, and the federal government can discriminate. This is essentially what we have now.
(4) SCOTUS finds that same-sex marriages are protected by the U.S. Constitution, and therefore ALL states must recognize same-sex marriages. The best of all outcomes.
(5) SCOTUS finds that the U.S. Constitution (14th Amendment) bars states from allowing same-sex marriage. The worst of all outcomes.
Now it is time to stick my neck out and make predictions, which will, most assuredly, be wrong. So here I go…..
In 1954, with Brown v. Board of Education, the Supreme Court lay down a landmark decision that laid to rest, with all finality, the issue of segregated schools. No way, the Court said, and there was no wiggle room. Not just for Topeka, Kansas (where the case arose), but everywhere. Nothing was left to the states but to implement integration, with "all due haste".
I don't see that happening with same-sex marriage… with this Court. It tends to be timid about making the sweeping apply-to-all-states kind of decisions. It is very sensitive to its unelected status, and will want to avoid making "activist" decisions, even though the Constitution might demand it (as it did in Brown). So it will, if at all possible, try to make its ruling as narrow as possible. Scratch #4 and #5 above.
The smart money says, and I agree, that DOMA will fall. Most say 5-4; I say 6-3. I think you get Justice Kennedy and maybe Chief Justice Roberts voting with the "liberals": Justices Ginsburg, Breyer, Sotomayor and Kagan.
There's little question that DOMA discriminates: it treats opposite-sex couples differently than same-sex couples. That's undeniable.
It should be pointed out to the lay reader that "discrimination" isn't, in constitutional parlance, necessarily a bad thing. After all, every single law discriminates. A law against child molestation discriminates against, well, child molesters.
So the key question, or one of them anyway, is whether the discrimination affects a "suspect class" of people. Without getting too deep in the weeds, a "suspect class" is any group (a) that has been the subject of invidious discrimination, hostility, in the past, (b) that possesses an immutible trait and (c) whose distinguishing characteristic does not prevent them from becoming meaningul members of society. Groups based on race fall into a suspect class. Presumably, so do homosexuals, although the Supremes have not specifically said so.
The counterargument regarding DOMA is this: it doesn't discriminate based on sexual orientation. After all, where DOMA says that marriage is between "one man and one woman", it is indifferent to the sexual orientations of either. That is what I call "the cute argument" ("Hey, gay men can still marry women, so where's the discriminiation?!?") and watch for Scalia to breathe life into that.
Anyway, once you've got the general sense of what level of discrimination we're talking about, then the court will ask, "Is there any rational basis for this discrimination?" or "What is the important objective that the government is trying to achieve that accounts for this discrimination?" In other words, it will look at the government interest.
And that's where the DOMA case crumbles. There simply is no federal government interest in discriminating between same-sex couples and opposite-sex couples. You know who says so? The federal government. The Obama Administration. They're not even there in the Supreme Court to defend DOMA. (It is being defended by a handful of Republicans in Congress).
Okay. So DOMA flies by the wayside. What about Prop 8?
But my prediction is that the Supreme Court will "punt" the issue down the road as much as it can. To the extent that they make a decision at all, I feel that they will limit it to California, and not all the states… even if all the states have provisions similar to that in the California constitution.
There are several ways that SCOTUS can "punt" this. For one, they can resolve the case on the standing issue, and never reach the merits of whether or not Prop 8 violates the state and federal constitution. "Standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place. Like the federal government in the DOMA case, the State of California is not showing up to defend the results of Prop 8. Who is? A conglomeration of right wing groups opposed to same-sex marriage. That is unusual.
The lower courts found that the plaintiffs in Prop 8 had standing. The Supreme Court might disagree. But if it does, what happens? Does Prop 8 get reinistated, because "the will of the people" said it should? Maybe.
But I think what is more likely to happen is that SCOTUS will rule that the plaintiffs have standing. Even then, however, they will still avoid the tough question, and decide in favor of defendants for one reason, and one reason alone — that it is unconstitutional to take away a "right" once it has been given.
Remember, there was a time when same-sex couples could get married in California. This was before Prop 8. Then Prop 8 came along and stripped that right away.
This narrowly drawn opinion will probably win 5-4. Justice Kennedy, as always, is seriously in play. Kennedy stands as the author of Lawrence v. Texas and Roemer v. Evans — two key Supreme Court decisions overturning state laws on sexual orientation. Lawrence invoked privacy protections to invalidate sodomy laws, while Roemer struck down a Colorado constitutional amendment that would have prohibited antidiscrimination laws protecting gays. On the other hand, Kennedy is also likely to be reluctant to overturn a sizable majority of state laws in one blow.
Chief Justice Roberts, I believe, is also in play. Just as he did when he voted in favor of Obamacare, he may want to side with the majority only so he can write a narrow narrow opinion.
But whether it is Roberts or Kennedy (or both), I predict the result will allow SCOTUS to allow same sex marriage in California, but not allow that precedent to spread to other states which clearly do not want same sex marriage. In doing so, the court will avoid having to answer THE salient question: "Does banning same sex marriage violate the federal constitution?"
So, a victory for California, but not the country. For the rest of the country, the battle returns to state legislatures.
This half-ruling will leave open many questions, most notably, issues regarding full faith and credit between the states. For example, if a same sex couple legally marries in Massachusetts, and moves to North Carolina, can a state-run North Carolina hospital deny visitation rights to one half of the same-sex couple, even though the law says it must allow it for opposite-sex couples?
Those kind of questions will not be answered this week. Again, as I say, the Court will kick it all down the road and only address those questions when it absolutely HAS to.
For those of you who read the transcripts of Prop 8 (or saw the play "8"), I don't think there will be much discussion about the facts that came from that case (or rather, the lack of facts showing that same-sex couples make terrible parents). Scalia is most likely to throw this crap in there, and possibly even insert "evidence" that wasn't raised at trial. Yes, he's just that bad a justice.