The Supreme Court is hearing two cases about marriage equality this week. What are they and what’s the difference between the two?
The first concerns the constitutionality of California’s Proposition 8, which will be argued on Tuesday, and the second, on Wednesday, concerns the Defense of Marriage Act (DOMA). Prop 8 was a 2008 ballot initiative that amended the state’s constitution to prohibit same-sex marriage. It was approved, despite the fact that the California Supreme Court had ruled a few months earlier that Prop 8 violated the state’s constitution. The two same-sex couples challenging the law say it violates the U.S. Constitution’s guarantee of equal protection.
DOMA is a 1996 federal law that prevents same-sex couples from enjoying federal benefits that heterosexual couples enjoy, such as joint tax returns and Social Security. DOMA also defined marriage as the union between a man and a woman.
How might the Court rule?
There are several possible outcomes for each.
In Prop 8, the court could uphold the initiative, and gay marriage in California would continue to be illegal. Or the court could overturn Prop 8, guaranteeing gay couples the right to marry in California.
But the court could go even further, not just overturning Prop 8 but guaranteeing gay couples outside of California the right to marry. This extension could go at least two ways. One is known as the “eight-state solution,” because it would call for marriage equality in the eight states where civil unions are currently allowed, granting all of the benefits of marriage to gay couples—except for the right to call themselves married. These states include California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. On Tuesday, the Obama administration argued in favor of this approach.
The second is to go whole hog, declaring marriage a constitutional right for all couples, gay or straight, across America.
For DOMA, the Court can either uphold or overturn the law. If it’s overturned, same-sex couples already in civil unions would be able to receive the federal benefits applied to heterosexual couples. The Court could also dismiss the case, arguing that it has not been adequately defended (the Obama administration does not support DOMA). In that case, DOMA would return again to the lower courts.
And then there’s the not-insignificant chance that the court will punt Prop 8 and/or DOMA back to the lower courts, on the grounds that the plaintiffs have no “standing” in the case. In other words, the court requires that parties show that they would be personally harmed by a law (or, as here, by a law being overturned). If the court found that there was no standing, the outcome of the case (or cases) would revert to the decision of the highest court below the Supreme Court to rule on them.
And what happens if the cases are decided differently? Is that even possible?
It’s possible. SCOTUSblog suggests that the court could strike down DOMA but uphold Prop 8, which would mean that individual states would decide on marriage equality. The logic: Congress can’t deny already-married couples their federal benefits, but state constitutions can determine whether marriage should be exclusively a union between a man and woman.
Who are the justices to watch in these cases?
As usual, Justice Kennedy is on the hot seat. Kennedy was the author of the most sweeping affirmation of gay rights in Supreme Court history—in 2003’s Lawrence v. Texas, which overruled a previous court case and outlawed all anti-sodomy laws—but in Tuesday morning’s oral arguments, he was more equivocal. One the one hand he said he understands that children of same-sex couples “want their parents to have full recognition.” But he also said the relative newness of same-sex marriage may mean there’s not enough evidence to prove that same-sex marriage can be productive for society. “We have five years of information to post against 2,000 years of history or more.”
Barring any surprises, the court should break down evenly after Kennedy, with Justices Breyer, Ginsburg, Sotomayor, and Kagan nearly certain to vote to overturn both Prop 8 and DOMA at the very least, if not call for a national constitutional right to marriage. On the other side, Chief Justice Roberts and Justices Scalia, Alitoc and Thomas are very likely to vote to uphold both Prop 8 and DOMA.
How did these cases make it to the Supreme Court in the first place?
Prop 8 has been making headlines since it passed in 2008, working its way through local, state and federal courts. After the law’s supporters lost in the lower courts, they appealed to the Supreme Court last summer, asking the Court to rule that the Constitution allows individual states to define marriage exclusively as the union between a man and a woman. The Court agreed to hear the case last December.
The debate over DOMA, like Prop 8, has been waged in lower courts for years. Last year alone, two federal courts ruled that the law was unconstitutional. The Court also agreed to review DOMA in December 2012.
When will we know the outcome of the cases?
Despite the media circus, we won’t actually know anything about the outcomes until these cases for months—most likely they’ll be announced at the very end of the court’s 2012-13 term, in the last week of June. There will be many predictions of the outcome based on Tuesday’s and Wednesday’s oral arguments, but if there’s one thing to be learned from the court’s landmark ruling on Obama’s health care plan last summer, it’s that deciphering the justices’ reactions to arguments is an imperfect science at best.