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A Tactful Move Toward Marriage Equality: How the Supreme Court Will Give Both Sides a Victory in the Gay Marriage Cases


A same-sex marriage supporter waves a rainbow flag in front of the US Supreme Court on March 26, 2013 in Washington, DC, as the Court takes up the issue of gay marriage. The US Supreme Court on Tuesday heard arguments on the emotionally charged issue of gay marriage as it considers arguments that it should make history and extend equal rights to same-sex couples. Waving US and rainbow flags, hundreds of gay marriage supporters braved the cold to rally outside the court along with a smaller group of opponents, some pushing strollers. Some slept outside in hopes of witnessing the historic hearing. (Credit: AFP/Getty Images)

The dust has now settled after the Supreme Court heard oral arguments on the issue of gay marriage. As we’ve seen many times in the last few years, all eyes were once again on the Court to decide a major issue of national importance. Throngs of people once again gathered outside the Court, just a little more colorfully this time.

Based on oral arguments, it seems the Court will likely avoid deciding that every state must allow gay marriage while simultaneously overturning the federal government’s Defense of Marriage Act (DOMA). Everyone will get a little something, but, most importantly, the struggle for gay rights has been brought forcefully to the public eye. With or without the Court’s help, the right to gay marriage is moving in the right direction.

The issue of gay marriage arrived at the Court in two cases. Hollingsworth v. Perry concerns California’s Proposition 8, a ballot measure passed in 2008 to overturn the California Supreme Court’s ruling that marriage discrimination is not permitted by the California Constitution. United States v. Windsor is a challenge to DOMA, signed into law by President Clinton in 1996 and also prompted by a 1993 Supreme Court of Hawaii decision permitting gay marriage.

There is an odd interaction between these two cases, an interaction of which the Court is well aware. On one hand, there is the argument that laws such as DOMA must be struck down because the federal government has no business being involved in decisions traditionally left to the states, which certainly includes the definition of marriage. On the other hand, the Proposition 8 challenge is based on the idea that states are not allowed to discriminate in their definitions of marriage.

Finding a way out of this thicket will take some creative judging, and the Court has many options open to it. The least likely outcome is that the Court will strike down all state statutes prohibiting same-sex marriage. Although this may be the correct decision legally, and I believe it is, it may not be the correct decision prudentially. Because the Supreme Court lacks any method of enforcing its own rulings, its legitimacy is deeply intertwined with how much respect it gets as an institution. The deep, national divide produced by decisions such as Roe and, at one time, Brown v. Board of Education, weighs heavily on the minds of justices, as well it should.

Moreover, the democratic process is quickly moving to legalize gay marriage through more traditional methods. Even justices firmly in favor of gay marriage may prefer that democratic channels be used.

So a decision striking down Proposition 8 on the grounds that the Equal Protection Clause of the Fourteenth Amendment prohibits states from marriage discrimination is unlikely. The Court can avoid that decision by ruling that the defenders of the law, a group of private sponsors of Proposition 8, do not have standing to defend the law in court. “Standing” is an abstract and difficult legal concept about who has a right to be in court, either as plaintiff or defendant. Although the state of California defended the law at the district court level, they did not continue their defense at the Ninth Circuit. Thus, if the case is dismissed for lack of standing, then the district court decision striking down Proposition 8 will remain.

The justices might also “dismiss as improvidently granted,” which is legal-speak for “we shouldn’t have agreed to hear this case.” That decision would also leave the district court decision in place. This is the most likely outcome because it has the least radical implications.

Turning to DOMA, however, the Court was in an entirely different mood. Like Perry, the Court gave itself options to punt on the issue by reviewing whether or not the defenders of the law, the Bi-partisan Legal Advocacy Group (BLAG), has standing. BLAG is a group of five House of Representatives members that intervened to defend DOMA when the Obama administration announced it would not defend the law.

Yet the justices were not as interested as they were in Perry in discussing the standing issue. Instead, much of the argument was devoted to whether DOMA is unconstitutional, either as a violation of the Equal Protection Clause or as a violation of federalism. Justice Kennedy, the key swing vote, seemed particularly interested in whether DOMA intrudes upon states’ ability to define marriage without encroachment from the federal government.

And here is where some nuance enters the picture. If the justices are disturbed by the political implications of striking down Proposition 8 on equal protection grounds, thus legalizing gay marriage in all 50 states, then they are also disturbed about striking down DOMA on the same theory. If DOMA falls on equal protection grounds then the exact same theory applies to all states that prohibit gay marriage. It would only be a matter of time, the time it takes to get a case through federal courts, until all states would be prohibited from marriage discrimination.

But there is an “out.” If Justice Kennedy votes to strike down DOMA on federalism grounds and the four liberal justices vote to strike it down on equal protection grounds, then DOMA will still fall but there will be no controlling theory as to why.

That is the likely result: a four-one-four decision where DOMA falls without a majority rationale that would legalize gay marriage in every state. Four justices voting for equal protection, four justices voting that DOMA should stand, and one justice, Justice Kennedy, voting that DOMA should fall on federalism grounds. That is my prediction, and one that I feel fairly confident making.

Either through the Court or through the democratic process, gay people will soon have the freedom to spend their lives with someone they love.

Trevor Burrus is a Research Fellow in the Cato Institute’s Center for Constitutional Studies

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