by David Gerrold
On Friday, November 30, the United States Supreme Court will decide whether or not to review California’s Proposition 8 and the various lawsuits challenging the Defense Of Marriage Act. Their decisions on whether or not to hear those cases will be made public in the first week of December.
Here’s my prediction of what is going to happen: a cautious step forward for marriage equality. But let’s start with some background necessary to understanding why before I get to the what.
Chief Justice Roberts is turning out to be a methodical moderate, very much aware of the political consequences of the court’s decisions and also very much aware of his own legacy. Judges hate to be overruled, especially Supreme Court justices.
The court postponed consideration of Prop 8 and DOMA until after the national elections. Most likely, they did this to see what the public mood would be on marriage equality.
President Obama’s Department of Justice has filed a friend of the court brief stating why they believe DOMA is unconstitutional. Had Romney won the election, his attorney general would likely have withdrawn that friend of the court brief.
Additionally, marriage equality won in the four states where it was on the ballot. This happened because the marriage equality campaigns were well-funded and well-managed. The anti-marriage forces lacked their usual war chests.
The Church of Jesus Christ of Latter-day Saints (Mormon Church) has been the chief force behind all of the anti-marriage initiatives since the first one in Hawaii nearly twenty years ago. The Mormon Church created a “coalition” using the Catholic Church as a front, they created the so-called “National Organization for Marriage” and funded other operations as well. This can all be verified and there’s a chilling documentary called 8: The Mormon Proposition that traces this history, quoting from actual temple documents. It’s sad and disturbing — the church damn near blackmailed its own members to donate life savings, college funds, and more to finance the campaigns.
But this year the Mormon Church stepped back from its own anti-marriage campaigns — possibly because the cat is out of the bag on their past support, and they feared a justifiable backlash. And even more likely, they wanted to invest their massive resources into the election of the first Mormon president. Whatever the reason, without the usual funding, marriage equality won in four states. That represents a significant shift in the national mood.
The Supreme Court is not supposed to be a political institution, but in reality it is. (The history of Loving v. Virginia is evidence of this, the court delayed ruling on interracial marriage for more than a decade because of the concern that the nation wouldn’t be ready for it.)
So, with that background in mind here’s what is likely to happen.
I think the court will decline to review Proposition 8. This means that the lower court rulings overturning the Proposition will be upheld. Proposition 8 was found to be unconstitutional by Judge Vaughan Walker and that ruling was upheld by the district court.
The Prop 8 legal challenge was the opportunity to have a rational debate about same-sex marriage in a court — the debate that should have happened in the election, but didn’t. The anti-marriage forces failed to make a compelling case against same-sex marriage in Judge Walker’s court, and have failed to demonstrate why a higher court should overturn Judge Walker’s ruling. Going before the Supreme Court is a last, desperate maneuver. They are arguing tradition, family values, the will of the majority, and states rights. All of those are losing arguments. In Lawrence v. Texas, the court ruled that tradition is not a basis for law. In Romer v. Evans, the court ruled that the tyranny of the majority cannot be used to deny the rights of a minority, and the whole states’ rights argument was invalidated in Brown v. The Board of Education (among others). The court would have to violate its own precedents to overturn Judge Walker’s ruling and uphold Prop 8.
Additionally, Prop 8 is limited to California. There’s no federal issue at stake, so there’s no federal interest in a Supreme Court review of Prop 8 — not unless it’s their intention to expand it into a broader ruling on the legality of same-sex marriage that would impact all 50 states. I don’t think this court wants to take that step. It’s much safer to uphold Judge Walker’s ruling and keep the issue confined to the state of California. A refusal to review would allow California to resume same-sex marriages within a week, probably by December 10th. This will make it legal for same-sex couples to marry in 10 states. (As of January 1st, 2013.)
The court is on a political tightrope here. Same-sex marriage is still a polarizing issue to many Americans. As of this writing, all of the states recognizing same-sex marriages are blue states. Other states that are likely to follow soon are also blue states. Illinois, New Jersey, Colorado, etc. Most of the 32 states that have passed anti-marriage laws are red states.
And that could possibly be a factor in the court’s handling of DOMA.
The Defense Of Marriage Act has been challenged in several federal courts. In every case, it has been found unconstitutional because it violates the full-faith-and-credit clause of the US Constitution—that clause says that states have to recognize the legality of contracts signed in other states. That was why the court ruled that Virginia’s anti-miscegenation law was unconstitutional in the landmark case of Loving v. Virginia. The state of Virginia had refuse to recognize the marriage of Richard and Mildred Loving, an interracial couple. The court struck down the Virginia law in 1967, and that’s a key precedent here.
The court could decline to hear the challenges to DOMA, and that would leave the lower court rulings standing, declaring DOMA unconstitutional. Much more likely, the court will decide to fold all the separate cases into one and review them. If so, they would hear oral arguments in April and announce their decision in June.
The rule of thumb is that a case has to represent a significant issue of constitutional interpretation for it to justify Supreme Court review. So the court could justifiably say that the issue of marriage equality justifies their attention.
The problem for the anti-marriage forces, as well as for the court, is that the court already has a large body of law that establishes several key precedents in favor of marriage equality. Brown v. The Board Of Education establishes that “separate but equal is not equal” Loving v. Virginia establishes that states must recognize marriages performed in other states. Lawrence v. Texas says that tradition alone is not a basis for law and a person’s sexual orientation is not a basis for discriminatory law. Romer v. Evans established that a referendum designed to restrict the rights of a minority is “the tyranny of the majority” and that the law cannot be used to define a class specifically for the purpose of denying that class equality in the eyes of the law.
Up against that, the anti-marriage forces simply don’t have a compelling argument.
If the court chooses to declare LGBT people a “suspect class” (ie. a class of people targeted for discrimination), then they have to apply strict scrutiny, which means that the state has to demonstrate a compelling reason for the denial of civil rights. While several judges have written rulings that have acknowledged the issue of suspect class, none have declared LGBT people to be a suspect class. Those rulings have said that if LGBT people were a suspect class, laws against them would fail strict scrutiny, but strict scrutiny has not been necessary because laws against them have failed rational scrutiny.
Not bad, eh?
So if the court wanted to uphold the Defense of Marriage Act, they would have to go against their own existing precedents. They’d have to carve a massive exception into constitutional law that would require an abandonment of common sense and simple logic.
But I think that the court will decide to review DOMA so as to create a space for national debate on the issue — not just debate, but national education. They’ll hear orals in April and in June, they’ll likely issue a very narrow ruling, declaring section 2 in violation of the full-faith-and-credit clause of the Constitution, but leaving the anti-marriage laws standing in those states that still have them.
This decision will not make same-sex marriage legal in every state. Instead, it will kick the can down the road a few years.
The effect of such a decision, as I see it, will be a nationwide de facto recognition of same-sex marriage. Folks who live in Texas or Idaho can’t get married in their home states, so they’ll go to Washington or New York to get married, then go home and sue their local governments for recognition. These cases will work their way up through the court system with the Supremes having to rule whether state laws against same-sex marriage are constitutional or not — and using the precedent of Loving v. Virginia, they’ll strike them down. 2016 would be the earliest.
Why not strike those laws down this year? It’s a matter of what the separate cases are technically about. The state laws aren’t being directly challenged. If the court felt the issue involved an egregious civil rights situation, it could combine all the cases and issue a very broad ruling striking down all anti-marriage laws, but that could unleash a horrendous political uproar in the red states. We’d be hearing the usual cries of “activist judges forcing homosexuality down our throats” (interesting metaphor, that.) But as I said above, this Chief Justice is turning into a very methodical moderate, more willing to take small steps than bold ones. By kicking the can down the road for two or three years, they give the red states a little more time to get used to the idea. They give the entire nation a chance to get used to the idea.
With California rejoining the ranks of states performing same-sex marriage, more than one-fourth of all American citizens will live in states with marriage equality — very nearly a third, actually. So this way the court is recognizing that while this year support for marriage equality is only at 53%, by 2016, more and more Americans will be used to the idea and approval will likely be at 60%.
Of course, all of the above is based on a rational reading of the court’s intentions — none of it includes Justices Alito, Scalia, or Thomas. And there’s also the presumption that by 2016, President Obama will have nominated two more justices to the court. If at least one of them is a replacement for Justice Alito, Scalia, or Thomas, the court will be moderate-to-liberal leaning again.
So my prediction is that the court will decline to review Prop 8, but will review the challenges to DOMA.
If I’m wrong, we’ll know next week. I’ll be very interested in what experienced court watchers have to say about the thinking of the court after we hear its decisions.