As expected, the Supreme Court has agreed to hear the same-sex marriage cases. Come June of 2013 we will know more than now about these matters, but what will we know? Here are some speculations.
United States v. Windsor poses the question of whether section 3 of DOMA violates the equal protection guarantee. That section denies any of the status benefits of marriage under federal law to couples of the same sex who are lawfully married under state law. The threshold issue is whether the Court lacks jurisdiction because the federal government agrees with the 2d Circuit decision or because the House leadership lacks standing to defend DOMA. The question is whether the House leadership has suffered actual particularized injury in fact. The liberal four on the Court are usually easy to satisfy on standing issues, but if they sense that the ruling on the merits is likely to be adverse to their views, they may suddenly become standing hard-liners. And the conservatives, who can usually be counted on to confine standing, may become standing liberals if they sense that they will prevail on the merits.
On the merits, if the Court continues to apply minimal scrutiny to this classification on the basis of sexual orientation, the challengers must prove either that there is no conceivable legitimate purpose for the classification or that there is no conceivable rational connection between a hypothetical legitimate purpose and the classification. In theory, the challengers have a tough road under this test: It is certainly a legitimate purpose to conserve money, or to limit the cost of such benefits to the marital relation that was understood to exist at the time Congress enacted these benefits, and denying federal marital benefits to same-sex couples does just that. It is at least conceivably rational for Congress to think that denying those benefits to lawfully married same-sex couples furthers the government’s interests in conserving money and limiting benefits to persons married in the form that Congress understood marriage to be when it extended the benefits. But this analysis will strike most people as much too thin. If that is so, it is because the distinction between lawfully married same-sex couples and lawfully married opposite-sex couples seems to be illegitimate. And here the argument veers into federalism – Congress chose to rely upon state definitions of marriage when it extended federal benefits to married couples so it implicitly incorporated state choice into the federal scheme. Having done so, DOMA can be characterized as an act of spite, a burst of legislative hostility to homosexuals that, as in Romer v. Evans, is the real purpose of the law, and thus as illegitimate as Colorado’s Amendment 2 or the legislative attempt to deny food stamps to hippie households, struck down in USDA v. Moreno. So, on the merits the Court can (1) apply minimal scrutiny uncritically (and uphold section 3 of DOMA), (2) apply the Romer tactic of characterizing the actual purpose of the law to be illegitimate (and strike sec. 3 while still adhering to minimal scrutiny), or (3) jack up the level of scrutiny to intermediate or strict in order to void sec. 3. Which will it do? I’ll bet on (2), with Justice Kennedy joining the liberals to find standing and reach the merits conclusion I have outlined.
Hollingsworth v. Perry is the California Proposition 8 case. The California Supreme Court ruled that the state constitution compelled recognition of same-sex marriage, the voters then overturned the decision by a constitutional amendment, and this litigation ensued. The Ninth Circuit, in an opinion by Judge Reinhardt, ruled that since the only effect of the amendment was to deny the label of “marriage” to same-sex unions (because California’s domestic partnership law continued to extend all the status benefits of marriage to registered domestic partners), Proposition 8 was a mere expression of animus towards homosexuals and thus akin to Romer and Moreno. Again, the Court has asked for briefing on the standing question, as California declined to defend Prop 8 and its defenders became the proponents of the proposition. Much the same standing dance may occur here as in Windsor, but there are some complicating elements. First, what’s the effect of a conclusion that there was no standing? Does it result in a vacation of the District Court decision as well as the Ninth Circuit ruling, or only a vacation of the Ninth Circuit opinion? If the former, it’s back to square one (assuming the leftist Governor and Attorney General of California decline to defend Prop 8). If the latter, Judge Walker’s decision stands but may only provide relief to the litigants before him.
The merits raises the large and divisive question of whether the political process should be foreclosed by a Court ruling striking down bars to same-sex marriage, or whether the rapid evolution of marriage laws in the states should be permitted to continue on a state-by-state basis. Given the vexing legacy of Roe v. Wade, it would not surprise me if the Court decides on the latter course. If so, it could do so by finding a lack of standing (which result provides only a brief reprieve from the issue, as other cases will come to it with litigants that undeniably have standing), or by a merits ruling that finds no constitutional violation in limiting marriage to opposite-sex partners (a result that would inflame gay activists but which leaves states free to change their laws as public opinion evolves). That result may not be unpalatable to the Court if it strikes section 3 of DOMA on the merits, as I speculate above.
We shall see, but as with icebergs we shall see only the tip and are left to speculate about the mass under the surface.