Supreme Court to Rule on Same-Sex Marriage…Maybe

By Ryan Blodgett

On Friday, the Supreme Court may take the first step in what could be a powerful legal change in same sex rights. The Court will decide (probably), whether to hear a case on California’s Prop 8 or on the federal Defense of Marriage Act. Both of these laws provide substantial restrictions on same sex couples’ (human rights) ability to marry, Prop 8 effecting California and DOMA applying nationwide.

Because the Supreme Court chooses whether to hear a case or not, the Court will be able to exercise its discretion on Friday and either decide that it will rule on a same sex marriage case during this term, or that it will wait for a later time to rule on this kind of constitutional case.

The Court was originally scheduled to make this decision last Tuesday, November 20th. But, as UPI reports, the decision was delayed until the 30th.

The Court will most likely decide that it will hear a case on DOMA or on California’s Prop 8, but not both. Proposition 8 is a ban on same sex marriage in California, passed by 52 percent of the vote in the 2008 election. The ban was quickly challenged in the courts. After being decided by a trial court in California, the case was appealed to the 9th Circuit, which decides cases on appeal from federal courts in seven states (map) in Western US, including California.

The 9th Circuit then ruled that Prop 8 was unconstitutional in February of this year. The Huffington Post explains, the court ruled in this way because it found no legitimate state purpose in Prop 8, since California already grants the same rights and benefits to domestic partners in the state. Instead, the court found that the only purpose of the statute was to “lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” said Judge Reinhardt. Super.

DOMA, the Defense of Marriage Act, is a federal statute passed in 1996 under President Clinton. The law provides that states are not required to recognize same sex marriages from other states and that the federal government will not recognize same sex marriages from anywhere. Since then, a lot has happened. President Bush endorsed an amendment to the US constitution to prohibit same sex marriage nationwide. President Obama endorsed DOMA’s repeal in his campaign platform in 2008.

I think the Supreme Court will choose to hear a challenge to DOMA and there are a few reasons:

Normally, when someone argues in court that a federal statute is unconstitutional, the federal government is given the opportunity to intervene in that lawsuit to respond. There is an entire executive office dedicated to doing this at the Supreme Court level. In February of 2011, the Obama administration released a statement that the federal government would no longer defend DOMA in court. In July of 2011, the administration even went so far as to argue that DOMA is unconstitutional in a case in the First Circuit Court of Appeals. The Supreme Court is likely to take notice of the significant amount of attention the Obama administration has placed on the constitutionality of DOMA in the last couple of years.

Second, the DOMA issue is raised in multiple circuits. Each state is divided into one to four districts for purposes of lawsuits in federal court. These districts each are made up of trial courts with judges and juries. After losing a case at the trial level, one may appeal to the circuit level. The United States is divided into 11 Circuit Courts, each of which has jurisdiction over the district courts in several states. If you lose in the circuit court, the only way to keep the lawsuit alive is to appeal to the US Supreme Court. Each of those 11 Circuit Courts is required to follow Supreme Court precedent. However, the Circuits are not required to follow the legal decisions by one another, and therefore sometimes produce inconsistent outcomes. This can make federal law fragmented and inconsistent in different regions of the country.

When more multiple Circuit Courts decide a legal issue for the first time, it makes it more likely that the Supreme Court will consider the issue. This is to help avoid inconsistent laws throughout the country. The First and Second Courts of Appeal have found DOMA unconstitutional (using different rationales), and several district courts have considered the issue as well.

But the question remains, if the Court does agree to hear one of these cases, what will be the outcome, and what ramifications will have for same sex marriage?

Most likely, if the Court hears the Prop 8 case, the decision will have long term repercussions, but its impact will not be felt very much outside of the state of California for years to come. If the Court were to find Prop 8 unconstitutional, it would become more difficult for other states to allow domestic partnerships or civil unions without calling them “marriages.” This is a semantic distinction primarily, but it’s pretty important to the basic human dignity of a lot of people.

If the Court found Prop 8 constitutional, probably with the five conservative justices doing so and the four liberal justices writing scathing dissents, it would be a blow for the same sex marriage movement in California and would slow advancement of same sex marriage rights nation-wide, as states would find it easier to prohibit same sex marriage through state constitutional amendments without running afoul of the federal constitution.

If the Court decided a challenge to DOMA, this could have stronger and more immediately felt ramifications nationwide. Would the Court make a headlines grabbing ruling finding all bans on same-sex marriage unconstitutional in the nation? Would such a ruling go down in history with cases like Roe v. Wade as celebrated by the left and infamous by the right? (yes) Would Roberts skirt the middle ground and side with the liberal justices as in the Health Care case?

Expect more on this issue if and when (Friday?) the Court decides to hear a DOMA challenge.

Posted by on November 29, 2012. Filed under Judicial,LGBT. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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