[Program Note: Every so often, I am able to re-run a column not just because of laziness or other obligations, but because what I said earlier is still so germane to the current debate and because I find I have not changed my position one whit since the original was published. In yesterday's column, I examined the likely path forward for gay marriage independent of what the Supreme Court may or may not do. Today, as the first gay marriage case has now been argued and we are all waiting for the second one tomorrow, I would like to present once again my predictions of how the Court will act. In the intervening four months, I haven't seen anything to change my mind, or my predictions.]
Originally published December 11, 2012
The news that the Supreme Court will be taking up two important gay marriage cases was expected, but nonetheless created a burst of commentary. But I can't help but wonder if people are getting the cases slightly backwards. In short, I think the Defense Of Marriage Act (DOMA) case is going to prove to be more important than the Proposition 8 case from California.
Before I begin, I must admit that I haven't taken the time to read each of the case's legal filings, so I'm depending on how others have described the cases for facts. If I get any of the details or nuances wrong, I apologize in advance. Also, I am not a lawyer nor do I play one on the internet. With legal caveats in place, let's move on.
Most of the focus so far, in the commentary I've seen or read, has been on the Proposition 8 case from California. This is a sort of reverse-twist case, and is unique. But people looking for sweeping rulings from this case from the Supremes are likely to be disappointed because, in my opinion, a narrow ruling is much more likely. In the DOMA case, however, most people are almost dismissive of it, since it is such a narrow challenge to the DOMA law. But I think a much more sweeping ruling is likely in this one.
Gay marriage advocates want a clean win. They want the Supreme Court of the United States to declare that gay marriage is a human right, and importantly a constitutionally-protected right. This would mean the immediate overturning of any anti-gay marriage state and federal law across the land, and would force all states to marry gay couples. They see their best chance as the Proposition 8 case, both because the question of gay marriage as a "right" is part of the legal case and also because the brief in favor of gay marriage was masterfully written (by the two guys who opposed each other as the lead lawyers in Bush v. Gore) to convince the swing vote on the court, Anthony Kennedy. So everyone sees this as the best chance of getting a 5-4 ruling in favor of legalizing gay marriage everywhere, immediately.
The two cases are very different. The Proposition 8 case came about because of the following series of events in California. First, the state supreme court ruled that gay marriage was a right, and would be allowed immediately. A whole bunch of gay folks rejoiced, and got married. But then a citizens' initiative was put on the next election's ballot called "Proposition 8," to make gay marriage illegal once again. Proposition 8 passed. Gay marriage was then ruled illegal, although Proposition 8 did not actually nullify the earlier marriages. So California entered a legal twilight zone where some gay couples were legally married, but no other gay couples could get married from that point on. The new law was challenged in court. The court case wound its way upwards (the whole history of its progression is fascinating, but far too detailed to relate here) until it has now landed in front of the U.S. Supreme Court. The case did factually examine the entire concept of gay marriage -- both the arguments for it and the arguments (what there were) against it. Which is why the gay marriage advocates may be putting their hopes on it -- because it has been so interesting to watch play out in the lower courts, and because the case of gay rights as fundamental human right was so thoroughly explored legally.
The DOMA case is much more straightforward (if you'll excuse the expression). A lesbian couple had lived together for more than four decades, and when gay marriage was available in another jurisdiction, they took a trip and got married. One of the partners died. When the other partner inherited her spouse's estate, she was forced to pay federal estate taxes on the inheritance, to the tune of more than $300,000. If federal law recognized their marriage, she would have been exempt from paying this tax (heterosexual married couples are not liable for this tax). So she can show real legal "harm" from one clause of the DOMA law, which gives her standing to challenge the law in court. Her case has also traveled through the lower courts and will be the second one decided by the highest court in the land.
The conventional wisdom among court-watchers is that the court could rule very narrowly on DOMA, and perhaps strike down the one clause of the law that is being challenged while leaving the rest of it intact. The conventional wisdom also states that the court -- if Kennedy can be swung successfully -- could rule on the Proposition 8 case that gay marriage is a fundamental right that cannot be abridged constitutionally.
I think this is backwards. I don't think a Roe v. Wade style sweeping judgment is going to appear quite yet. I don't even think it'll be a Loving v. Virginia type of impact, although this is a better legal analogy.
Personally, this is how I see the cases playing out. I think the Proposition 8 case is likely to be decided on narrow grounds. I think the court will set aside the larger "Is gay marriage a universal right?" question, and instead rule to overturn Proposition 8 -- but only because it is such a unique set of circumstances. They'll rule that California cannot take away a right at the ballot box that it has already bestowed. Gay marriages which have already taken place cannot legally coexist with other gay couples who are refused the right to marry. It's "separate but not equal" and it will be struck down. But -- and here's the key part -- it will not apply to any other state. California is the only state that has taken this twisted route to banning gay marriage, so the ruling will only specifically mandate that any state which does approve gay marriage cannot later take the right away, even at the ballot box -- which is a pretty narrow set of circumstances.
This will make the DOMA case more important, as a result. And the DOMA case will be decided broadly. The entire Defense Of Marriage Act will be thrown out, because it is a blatant violation of the Constitution (the part that says "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State"). The concept of a federal definition of marriage will be thrown out by the Supreme Court, and any couple which has been legally married in any state will be legally a married couple in every other state -- even if that state didn't marry those two people. All federal benefits to married couples will be granted to gay couples legally married in any United State.
That's pretty sweeping, but I also predict that the high court will stop short of making as sweeping a ruling as they did in Loving v. Virginia. This was the case, back in the 1960s, that threw out the existing state "miscegenation" laws which prevented interracial marriages. The Supreme Court will not go this far for gay marriage -- it will not proclaim gay marriage a universal right that is constitutionally-protected.
It might seem like they couldn't avoid doing so if they ruled that DOMA was illegal. But my guess is that the court is wary of another Roe v. Wade multi-decade political fight after its ruling. So the court will not force any state which has made gay marriage illegal to change their laws. They will merely leave it up to the states, as a "states' rights" sort of issue.
Further, I predict that both these decisions will be 6-3, with both Kennedy and Chief Justice Roberts voting with the majority.
Roberts knows which way the wind is blowing (and, more importantly, will be blowing in the very near future) on the whole gay marriage issue. No justice wants to be remembered for a Dredd Scott type of decision -- a ruling which will be overturned later and held up as a prime example of when the Supreme Court "got it horribly wrong." On the other hand, Roberts also doesn't want to be remembered for too "activist" a decision, either. He won't want to toss out laws in almost eighty percent of the states (by comparison, only 14 states still had miscegenation laws when Loving was decided). He doesn't want to get too far out in front of public opinion, even if he can realize which side is going to be seen as the "right side of history" in the future.
So the Supreme Court will punt -- twice -- on the underlying bedrock question of whether gay marriage is a right guaranteed to all by the Constitution. In the Proposition 8 case, the court's ruling will only affect California and serve as a warning to other states that once they legalize gay marriage, there will be no turning back. In the DOMA case, the court will rule federal marriage laws (including all of DOMA) illegal, and gay married folks will be able to fill out their federal income taxes the same way any other married couple does (and inherit without estate taxes, and enjoy all the rest of the federal marriage benefits). But the court will also rule that because the DOMA case which has appeared before them didn't directly make the argument for the universal constitutionality of gay marriage, they will decline to rule on that issue at this point.
Thus, gay marriage supporters will gain half a loaf, but it's a pretty important half nonetheless. Because the ruling will open the floodgates for any American couple to get married and be treated as married anywhere in the United States. A lesbian couple from Texas just has to take a vacation in a gay marriage state and tie the knot while they're there, and they will be considered married from that point on no matter where they go or live. Period. This will serve to undermine the state laws against gay marriage, until they are seen as hopelessly outdated and meaningless.
The court itself, by ruling in such a fashion, will postpone a ruling on the fundamental gay marriage constitutional issue. A better test case will start working its way through the lower courts -- a process which takes many years, normally. This will serve as a period when America will get used to the new status quo of gay marriage being up to each state, but allowed by the federal government. More and more states will enact gay marriage -- at the ballot box, now -- showing which way the tide of history is turning. By the time the Supreme Court takes up the issue again, it should be a lot more obvious how the public's attitudes are changing. So the next time gay marriage appears before the high court, they will indeed rule it a basic right and sweep away all of the state laws banning it, forever.
But not this time around. This time, the court just isn't going to stick its neck out that far. I could prove to be wrong, but that's how I see it.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant