Now what? After years of struggle and strategy in court rooms, television studios, state houses, and old-fashioned protest marches, marriage equality finally had its day before the highest court of the land last week. As movement leaders plan and prepare for the Supreme Court’s ruling (likely in late June), let me dust off my law license and offer a layman’s view of what is likely to happen from here.
Despite all the intensive media coverage, it may have still been difficult to understand exactly what was at stake from a legal standpoint. In a fairly unusual procedural move (befitting the importance of the issue), the Court heard two separate cases relating to marriage equality.
- Proposition 8 in California - The Prop 8 case was, in some ways, the clearest in that it involved the simple right of same-sex couples to marry. People forget that for a few months in 2008, same-sex marriage was legal in California after the State Supreme Court struck down the state’s laws banning marriage equality. Prop 8, coming six months after the court decision, reinstated that ban. The West Coast federal appellate courts then struck down Prop 8, but everything had been in limbo pending the Supreme Court decision;
- (So-called) Defense of Marriage Act (DOMA) – Back in 1996, showing where our politics stood less than 20 years ago, Congress and President Clinton enacted DOMA which banned the federal government from providing benefits to same-sex couples even if they were married in a state what recognized marriage equality. The case before the Supreme Court – brought by a lesbian widow – challenged the constitutionality of DOMA.
Most legal observers think that, judging from the questions and comments of the Justices during oral argument, both DOMA and Prop 8 are doomed. That’s the good news (more on that in a minute). If the Court shocks the nation and upholds both Prop 8 and DOMA, then we will still have a divided nation where the tide has turned, profoundly, in favor of marriage equality (some speculate that the conservative justices pushed to hear the cases because they knew this was their last best chance to hold back the tide of marriage equality in America).
I said that the more likely outcome of striking down Prop 8 and DOMA was the good news. The less good, but not surprising, news is that the Court will probably do so by finding a procedural “out” that does not decisively affirm lesbian and gay equality (not surprising because the Supreme Court has never been a paragon of courage and leadership). In the Prop 8 case, the justices seemed drawn to the conclusion that the proponents of Prop 8 did not actually have the right to even be bringing the case (and they’re right about that; only the Governor or Attorney General have what’s called “standing,” and both of them declined to defend Prop 8). With DOMA, the more liberal justices clearly want to strike it down as discriminatory, but it looks like the crucial fifth vote will come from Justice Kennedy who seems to see it as an improper use of federal power over the states (and at least Kennedy has the intellectual honesty to be consistent in his “states rights” beliefs; the others will willingly discard those beliefs when it’s convenient to express their moral distaste).
Most analysts agree that it’s highly unlikely that the Court will actually affirm the constitutional right to marriage equality and extend the strongest protections to discrimination based on sexual orientation.
Implications of a Procedural Win
What are the implications, then, of a procedural win on these cases. Most simply, as Washington Post writer Jonathan Capehart said, “if they want to use procedural grounds to strike down DOMA and Prop 8, I’m okay with that.” Because of California’s size (38 million people, 12.12% of the U.S. population), the percentage of the population living in marriage equality states will nearly double overnight. California will join nine other states and the District of Columbia in affirming marriage equality, and those states will then comprise 27.82% of the U.S. population.
Also extremely important from a legal standpoint is that the California Supreme Court decision calling for “strict scrutiny” (the highest level of legal protection) of laws based on sexual orientation will be the law of the land in the largest state in the land. While not binding on other states, such a development is nonetheless meaningful and influential in other states.
DOMA’s demise will mean that that 27.82% of the U.S. population is eligible for federal benefits no matter who one chooses to love (assuming Prop 8 is also struck down). Pew Research Center’s map highlights the marriage equality map.
The legal outlook for cases challenging laws discriminating on the basis of sexual orientation has never been better. If nothing else, this round of litigation has hacked away at the legal underpinnings of bans on same-sex marriages. The lawyers defending DOMA were forced to essentially lie about the original purpose of the law (to express moral disapproval) and claim that it was only established to provide uniformity among the states (despite the fact that there is no uniformity among the laws for heterosexual marriage). The DOMA proponents were forced to fall back on the absurd argument that marriage is about “responsible procreation,” and even Justice Scalia was forced to reach for the “I’m just sayin’” argument that maybe same-sex parents don’t do a good job of parenting. Such legal nonsense cannot long stand, and even most conservative judges will want a little more of a legal fig leaf to cover up their private, bigoted opinions.
On the political front, the ground has shifted fundamentally in less than a decade (witness the bipartisan rush to endorse marriage equality last month and even the concession of defeat by Rush Limbaugh). This sets up a fascinating backdrop for the political battles to come in 2014 and 2016, as a majority of Americans now favor marriage equality. It’s entirely possible that in less than a decade, we will have gone from marriage equality being a wedge issue for the Right to it being a potential wedge issue for the Left (it’s well-documented that outright bigotry alienates moderate and swing voters).
In so many ways, we've already won this fight. While we can't let up, of course, it will be enjoyable to watch the slow-moving train wreck of the collapse of officially sanctioned bigotry and discrimination.