By Kurtis Hiatt
The issue of gay marriage reaches the country’s top justices on Tuesday and Wednesday this week as the U.S. Supreme Court hears arguments in two cases: Hollingsworth v. Perry, which challenges Proposition 8, a California law prohibiting same-sex marriage, and United States v. Windsor, a challenge to the country’s Defense of Marriage Act, which defines marriage as between one man and one woman and denies many federal benefits to gay couples.
With each case comes a tangle of complex legal arguments and uncertainty over how the justices will rule—if they decide they can rule on them at all.
Alan Morrison, a professorial lecturer at the George Washington University Law School, spoke with George Washington Today about the cases, how public opinion may sway the justices and whether there’s any telling how they might rule.
Mr. Morrison will also moderate a discussion on the cases today at 4 p.m. in the Jacob Burns Moot Court Room in the Law School’s Lerner Hall.
Q: Let’s start with Prop 8. What is it, and how could the justices rule?
A: In the Prop 8 case, plaintiffs argue that Prop 8, a constitutional amendment passed in 2008 by California voters that prohibits same-sex marriage, is unconstitutional because it disfavors same-sex couples without any legitimate reason.
Defenders of the law, however, argue that the state has the right to prefer couples in which there is one man and one woman as a means of channeling procreation, as a preferred way to raise children and to advance what the voters saw as a moral preference for heterosexual over homosexual relationships.
When it comes to a decision, the Supreme Court could rule in a few different ways. It could agree with the Obama administration and say that once a state has created domestic partnerships—or civil unions as they are called in some of the other nine states with similar laws—there is no acceptable reason for not allowing same-sex couples to be able to obtain marriage licenses like everyone else. Or it could go all the way in either direction. It could say that states are completely free to deny same-sex couples the right to call themselves married. Or it could rule that no state can deny that right, even if their state constitution forbids any recognition of same-sex relationships.
Q: And what about the other case?
A: The other case, which challenges the part of DOMA that defines marriage for purposes of all federal laws as only between one man and one woman, does not have the range of decision options as does the Prop 8 case. The law is either constitutional or it is not.
The problem for the House of Representatives, which is defending the law, is that the justifications given in Prop 8 for not allowing same-sex marriages apply to a much lesser degree (if at all), because the challenger is a New York resident and New York permits same-sex marriage.
The House argues for the need for federal uniformity. But the opponents point out that there was already a consistent standard before DOMA—federal law simply followed state law—and there has to be some good reason for preferring one kind of uniformity over another. They also point out that the IRS has long recognized common law marriages that are anything but uniform without any great trouble, and other agencies have tolerated dis-uniformity of other kinds both before and after DOMA.
DOMA is also vulnerable, say its opponents, because Congress failed to investigate its consequences for the more than 1,100 laws it affects, with the result that, according to the Congressional Budget Office, it could actually cost the federal government as much as $2 billion per year. They also point out that treating same-sex married couples as if they were not married exempts them from all federal ethics and anti-favoritism laws and re-opens loopholes in the tax code that Congress had closed to prevent spouses from unfairly avoiding federal taxes.
The House’s rebuttal is that these are the kinds of judgments that Congress makes all the time, and unelected federal judges should not second guess them simply because they would have written the laws differently.
Q: In what ways are the two cases similar from a legal perspective?
A: First, they challenge laws that treat same-sex marriages less favorably than opposite-sex marriages, and plaintiffs claim the laws violate the equal protection clause of the Constitution. Secondly, the plaintiffs in both cases say that, because the laws at issue are based on the sexual orientation of a less favored group, the court should examine the justifications with special care, known as “heightened scrutiny.”
Q: Could the court decide it doesn’t have the power to make a decision in either case?
A: Yes. Because in both cases the government whose laws are being challenged decided not to defend them, the court will need to determine whether it even has the power to decide the cases without a true adversary as a party on both sides. Finding that it doesn’t have the power to decide them may be a way for the court to duck—for the time being—a hard decision in one or both cases.
Q: Public support for gay marriage is at an all-time high, given its recent successes in state ballot measures and according to several polls. Former Secretary of State Hillary Clinton just officially endorsed it, and the president supports it. The justices aren't in a vacuum. How could these factors play into their decision?
A: It is impossible to say how the increased support for same-sex marriage—in both the private and governmental sectors—will affect the justices.
On the one hand, as the defenders of the laws argue, this suggests that the political process will correct any injustices without judicial interference, and so the court should leave these laws in place.
On the other hand, the increased acceptance will give the court some assurance that a massive backlash is unlikely if it should strike down one or both of these laws. Of course, the increased acceptance is unlikely to affect all justices in the same way.
Q: With their range of marital statuses, the justices embody what the Washington Post called “modern marriage.” Will this affect their ruling? As much as they may try not to let their personal experiences bias them, is that truly possible?
A: All judges do their best to keep personal experiences from affecting their decisions, but most observers believe that total separation of personal views and judicial decisions is impossible. Justice Clarence Thomas showed that he was able to do that in the case in which the majority struck down the law making sodomy a crime. He dissented, saying that, while the law was “uncommonly silly” and he would have voted against it as a legislator, as a justice he thought that it was not his views that mattered.
Q: Many friend-of-the-court briefs have been filed in these cases, on both sides. What role do they play in the ultimate ruling?
A: It is impossible to say in advance what role any friend-of-the-court, or amicus, briefs, will play, especially because there are so many on both sides. An amicus brief is particularly useful when it does more than re-state the main arguments and when it calls attention to undisputed facts as to the impact of the law that may not be obvious to the justices.
Q: When will we know the decisions?
A: The cases will be decided in late June, probably on the last day the court issues opinions.
Q: And finally, what is your prediction for how the justices will rule on each case?
A: I must beg off on this one—there are too many variables, and as we saw last year, the Obamacare case came out in ways that virtually no one predicted.