On Friday, the Supreme Court will make one of its most important decisions of the year: should it rule on gay marriage? The justices will meet privately for what’s known as the “conference” and decide which, if any, of the numerous pending cases dealing with gay marriage to hear. The court won’t reach the merits of any of those cases on Friday; that comes after briefing by the lawyers and oral argument. Friday’s decision will only determine whether any briefing and oral argument on marriage equality will take place this term. Four votes are needed for the court to accept a case.
Of the 10 marriage cases awaiting a decision by the justices, the one that’s received the most media attention is über-lawyers Ted Olson and David Boies’s challenge to California’s Proposition 8. That was a ballot measure that ended California’s short experiment with gay marriage. This case raises the big question: is it constitutional for a state to ban gay marriage? If the court takes this case and decides it in favor of Olson and Boies, it’s possible that every state in the union would be required to allow gays to marry.
While gay-rights activists would be thrilled with that result, many are praying the court decides not to hear this case at all. Many fear that the conservative Roberts court is not ready to mandate gay marriage nationwide and an adverse ruling could set back marriage equality for a generation. Besides, if the court refuses to take the Olson and Boies case, it’s still a major victory for gay rights. The court’s abstention would allow the lower court ruling in the case, which struck down California’s ban, to stand. That means gay couples would be allowed to marry again in the nation’s most populous state, perhaps by year’s end.
The Proposition 8 case is probably the least attractive of all the marriage cases to the justices. While the six men and three women who sit on the high court aren’t known for their timidity in tackling controversial issues, they may want to avoid this one. The case has a host of messy procedural issues stemming from California’s refusal to defend the law. And a bold ruling in favor of marriage equality could spark the kind of backlash ignited by Roe v. Wade. Or perhaps the better analogy is Citizens United. Chief Justice John Roberts, who came in promising narrow rulings that preserved the court’s public legitimacy, was burned badly by that 2010 decision unleashing corporations to spend unlimited amounts of money to elect candidates. He may want to stay away from the fire this time, as he did in the Obamacare case earlier this year.
The more liberal justices might agree that it’s best to steer clear of Olson and Boies’s case, especially given the momentum in favor of equal-marriage rights reflected in the November elections. Four states had ballot measures on whether to allow gays to marry—Washington, Maine, Minnesota, and Maryland—and all four won. If these justices believe that public opinion is shifting strongly in favor of marriage equality, they may want to keep the court out of the fray for as long as possible. Justice Ruth Bader Ginsburg, the leader of the liberal wing of the court, has argued previously that Roe was a mistake and that access to abortion would have expanded slowly through the electoral process had the court issued a more narrow ruling.
The justices are more likely to agree to hear one or more of the eight cases challenging a key provision of the 1996 Defense of Marriage Act. That provision, known as “Section 3,” denies federal marriage benefits to gay couples lawfully married under their own state’s laws. Married couples from states like Massachusetts, where gay marriage is allowed, claim that DOMA denies them numerous rights all other married couples have under federal law, like Social Security benefits, the spousal exemption from estate tax, and the ability to file joint tax returns.
The justices might see that the gay-rights victories, which just a few years ago would have led conservatives to react with incessant outrage, were met with a whimper.
The DOMA cases are likely to be appealing to justices thought to be in favor of gay rights—currently a majority on the court—because the court could rule more narrowly than in Olson and Boies’s case. The court could strike down Section 3 without having to decide whether the Constitution requires states to allow gay marriage. The only issue is whether couples already married under state law can be denied federal benefits. The conservative justices inclined toward states’ rights might also want to take on DOMA. Defining marriage is a traditional function of the states, so DOMA could be seen as upsetting the delicate balance between the national and the state governments. Striking down DOMA could set a precedent for future efforts by conservatives to limit the reach of federal law.
How might the November elections impact the justices’ decision to take a DOMA case? It is hard to tell. On the one hand, some justices may believe that, given the trends in public opinion, DOMA will die out on its own, repealed eventually by Congress. On the other hand, the justices might see that the gay-rights victories, which just a few years ago would have led conservatives to react with incessant outrage, were met with a whimper. That might suggest that, unlike a broad, gay-marriage-everywhere ruling that would surely spark a backlash, a narrow ruling expanding gay rights wouldn’t come back to haunt the justices.
Regardless of what happened in November, there’s one reason the court is all but compelled to take a DOMA case. Several federal courts have declared Section 3 unconstitutional. As a result, if the court refuses to decide the issue, federal law will apply differently to people depending on where they live. Gay married couples in regions covered by the lower court rulings, like the Northeast, will be entitled to federal benefits while those elsewhere won’t. This lack of uniformity should weigh heavily in favor of the justices accepting at least one of the DOMA cases.
We’ll find out whether it did on Monday, when the court announces its decision.