Cautiously Optimistic On Gay Marriage

[ Posted Monday, June 10th, 2013 – 16:58 UTC ]

June is "Supreme Court Decision Month" in the nation's capital, and the two cases which may have more political impact than any others are the ones dealing with gay marriage. In both the Proposition 8 case and the Defense Of Marriage Act (DOMA) case, many are hoping for sweeping rulings which put the subject to rest for all time. Personally, I don't think that's what's going to happen -- I think the rulings will be more limited, and that the fight for marriage equality will have to go on for a little longer before such a sweeping ruling happens. But, at the same time, I am optimistic that that day will indeed come, and that it's not that far in the future.

The Supremes could surprise me, of course -- they've certainly done so in the past, on many occasions. It's a lot tougher to pick outcomes on the Supreme Court than it is to, say, pick who is likely to win an election. Only nine people get to vote, after all, and they don't answer public opinion polls in the meantime. But I have a strong suspicion that the Supreme Court is going to try to kick the political can down the road a bit.

Of course, the justices could rule overwhelmingly for or against gay marriage. Ruling against gay marriage would likely happen (if it does) by the Supreme Court finding technical issues on which to rule -- issues which would essentially make the two cases "go away." On the Proposition 8 case, the court could rule that the defendants had no standing -- which would legally mean the case was invalid all the way back to the beginning. This would have the real-world effect of Proposition 8 being upheld, and California would have to legalize gay marriage either through future efforts at the ballot box, or through the state legislature. On the DOMA case, the Supreme Court could likewise find some technical reason to send the case all the way back to square one, leaving DOMA intact as the law of the land. But I don't really think the court will do so.

Gay marriage proponents would, of course, like a decision that gay marriage is a human right protected by the Constitution and which would invalidate every law against it in every state across the country, in the blink of an eye. I don't think the court is going to do this, either. To do so they would be open to the anguished cries of "Activist judges!" from anti-gay-marriage conservatives. There would be an enormous political backlash. The justices are protected from such a backlash by their lifetime tenure, but they are not completely ignorant of America's politics either. Overturning laws in eight-tenths of the country would be a bold step, but one I just don't see five or more justices making right now.

My prediction all along -- ever since the cases were initially heard by the Supreme Court -- is that the Proposition 8 case is going to win on very narrow grounds. California took a unique path to where it stands today, with gay marriage being legal for a certain time, and then becoming illegal. I am aware of no other state that has trod the same legal path, so the Supreme Court can easily limit their ruling's effectiveness to California alone. There are gay couples in California who are legally married, and there are other gay couples who would like to legally get married who can't. That is a pretty clearly unequal situation, but again it is one that no other state currently finds itself in.

The DOMA case is going to wind up being the more important one -- much to some court-watchers' surprise. A lot of people are pinning most of their hopes for legal victory on the Proposition 8 case, but the DOMA case has the potential for a much more far-reaching outcome, in my opinion. In the first place, DOMA is a federal law, not a state law. In the second place, the Supreme Court could invalidate the entire law (if it chooses to) without interfering with any particular state's laws. Which I think is going to look pretty tempting to at least five justices.

What would this outcome mean? Well, if DOMA or major portions of DOMA are struck down as being unconstitutional, it will mean the woman who sued will get paid the survivor's benefits she is claiming for her deceased spouse (it is actually a refund of taxes she wouldn't have had to pay, if you want to get technical). It will mean that federal law will no longer prohibit treating gay married citizens the same way it treats heterosexual married citizens. This means gay couples will be able to fill out their taxes the same as every other married couple (currently, they can claim "married" status on their state forms, but not on their federal forms). It will mean the Pentagon can treat gay spouses of those serving in uniform the same as it treats heterosexual spouses -- meaning they will have access to benefits and perks they currently do not (because DOMA bans such things). But it will not mean that every state will be forced to immediately legalize and implement gay marriage. Instead, it will set up the next big gay marriage court case -- the one which will determine if states will be constitutionally allowed to ban gay marriage.

What would happen, under this scenario, is that DOMA will be either partially or fully scrapped. Because there is currently a patchwork of state laws on the subject, sooner or later some gay couple is going to get married in a gay-marriage-friendly state, and then they are going to move to an anti-gay-marriage state. Adam and Steve (to borrow the favorite metaphor of the antis) get married in Massachusetts and then move to Texas because Steve gets a good job in Austin. The Constitution dictates that all states are required to give "full faith and credit" to legal documents from other states -- such as a marriage certificate. This is why heterosexual couples don't have to get married again every time they move from state to state. So Adam and Steve are going to claim, in court, that Texas has to treat their marriage as legally valid.

I don't mean to single out Texas -- it could be any state with a law on the books outlawing gay marriage (and there are a lot of them). But there is going to be a conflict between state law and federal law, because Adam and Steve will be able to prove in court that the state they originally got married in treats their marriage as valid (obviously), and that, further, the federal government also treats their marriage as valid. While they will likely lose their lawsuit in their new state's court system, it will eventually wind up in federal court. And the legal issue is going to be closer to the fundamental question of whether gay couples have an inherent right to get married -- no matter what state they live in.

This, I predict, is going to be the case which will achieve the ultimate legal victory for gay marriage. This is going to be gay marriage's Loving v. Virginia (the case which outlawed all state miscegenation laws). But it's not going to happen for a number of years to come. Adam and Steve v. Texas is going to have to run the gamut of the state court system, with appeals all the way up to the state's supreme court, and then it'll have to follow the same process in the federal courts. All of that takes time -- a lot of time. Proposition 8 passed in the 2008 election, for instance. Meaning that the country as a whole will have five years or so before the Supreme Court makes such a monumental ruling. In that five years, other states are quite likely going to legalize gay marriage. The tide has turned. The number of states which allow gay marriage will rise to 15, 20, perhaps 25. The arc of history will become crystal clear to all.

I think the Supreme Court is going to create this waiting period, so that it can wait a few years before making the type of sweeping ruling many are hoping for this month. I think that Proposition 8 will be struck down -- but it will only affect California. I think that DOMA will be struck down -- completely, I hope, but perhaps just partially. I think that the federal government will begin treating gay married couples like all other married couples. Since I'm going out on a limb here anyway, I'll even predict that Chief Justice John Roberts joins the winning side in each case for two 6-3 decisions. But I don't think that this month is going to see the Supreme Court even rule on the basic question of whether gay marriage is a fundamental constitutional right. I think they're going to dodge the issue this time around, and wait for the country to adjust a little further to the idea before they even contemplate doing so.

I could, of course, be wrong. My track record of predicting Supreme Court decisions isn't a particularly good one. And I would be thrilled to hear that the Supreme Court overturned all state gay marriage bans, just for the record. If that's how I turn out to be wrong, then that would indeed be a happy outcome. But I am only cautiously optimistic, at this point, and feel that while both cases will be seen as incremental victories by the gay rights supporters, that in neither one of them the Supreme Court is going to produce an ultimate victory. I think we're all going to have to wait a few more years for that to happen.

-- Chris Weigant


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


2 Comments on “Cautiously Optimistic On Gay Marriage”

  1. [1] 
    akadjian wrote:

    If Michale's truly going to be absent, I'm going to post some links related to actions folks can take to help advance a cause.

    These will be related to the topics Chris is writing about.

    Human Rights Campaign (HRC) is an organization fighting for equality. On their page, they have a letter you can write the Boy Scouts to end the ban on gay scouts. It's also a bit of a one stop shop for information about gay equality.

    Check it out and if anyone knows of any other good resources, please post!

    p.s. Chris, I also have to point out that I love the title of the court case "Adam and Steve vs. Texas"!

  2. [2] 
    Chris Weigant wrote:

    akadjian -

    Yeah, I was searching for how to present an example and decided the Adam-n-Steve thing worked great. Then, later, I needed a court case to reference, and Texas just seemed to be a believable example...



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