Nearly five days before the Supreme Court would be meeting this week to consider the historic constitutional controversy over same-sex marriage, a line of hopeful spectators had begun forming at the foot of the court’s steps. In the unusually sharp cold of a March weekend, only the hardy–or a hired place-keeper–would stick it out, since the court’s chamber will accommodate fewer visitors than a small-town basketball gym.
Expectations ran high. The court, except for a fleeting glimpse at same-sex marriage 41 years ago (a glimpse that passed with little notice), will be examining that issue closely for the first time. Two fully developed cases–one involving state power over marriages, the other federal power–will be heard Tuesday and Wednesday mornings before a packed chamber. By early afternoon each day, audiotapes will be released by the court (there is no television coverage). Aside from the written pleas of those directly involved, the cases have drawn close to 150 briefs by friends-of-the-court, trying to help shape the outcomes.
It has been just short of 44 years since the gay rights movement had its now-acknowledged beginning with police raids on a gay bar, the Stonewall Inn in New York’s Greenwich Village, prompting a sturdy response from the bar’s customers and their sympathizers. And now, in the decorum of a courtroom, that movement’s most ambitious pursuit gets its ultimate constitutional test.
Last September, almost at the moment that the court began thinking about same-sex marriage, another institution that had long been a hallmark of mainstream respectability–the U.S. military–became fully open to gays and lesbians after congressional repeal of the “don’t ask, don’t tell” policy went into effect. And last November, about a month before the court would accept the same-sex marriage issue for review, elections on that question for the first time began going in favor of marriage equality.
A tide, cultural and political, seemed to be running.
As this week’s constitutional hearings unfold before the justices, the score is still 41 to 9 among the states: 41 of them continue to ban it, while nine, plus Washington, D.C., allow it.
The court has the option of making the score 50 to 0 in a sweeping decision, or two decisions. And, given the intensity of the written arguments already put before the justices, there are some on each side who foresee that possibility, with dread or elation.
That, in fact, was the ultimate aspiration of two same-sex couples in California when, in May 2009, with the help of two of America’s highest profile and deeply experienced lawyers, they began a lawsuit against California’s Proposition 8 in a federal courthouse in San Francisco. The state’s voters had approved that flat ban on same-sex marriage in November 2008 to overturn a state Supreme Court ruling allowing gays and lesbians to marry (which 18,000 couples had done in the meantime).
The two couples won their case in lower federal courts, first in a very broad ruling from a federal judge, and then in a narrower decision by an appeals court, and now those decisions are set for review on an appeal filed by the sponsors of Proposition 8. That is the case the justices will hear on Tuesday.
On the following day, the court will hear the federal government’s appeal in a test of the Defense of Marriage Act–a law passed by Congress in 1996 to declare, for the first time, that some 1,100 federal laws or programs that provide marital benefits are confined to married opposite-sex couples. Same-sex couples legally married under their own state laws would be denied benefits, such as the right to file a joint tax return or to obtain a Social Security death benefit.
Is the court ready to decide that the right to marry, which it has long treated as a fundamental constitutional right, must be extended to gays and lesbians? Such a ruling, depending upon its sweep, could mean that no state could any longer reserve marriage for opposite-sex couples, and that all federal marital benefits had to be distributed equally to married same-sex couples.
The chances, though, are not very strong that the court is ready to go that far. In fact, it has given itself what amounts to a way out of any ruling on the constitutionality of either Proposition 8 or DOMA. In each of the cases, it has raised an additional question: does the court have the constitutional authority to decide either one of them?
Under the Constitution’s Article III, a federal court must have before it a live “case or controversy,” with a party on each side with a direct, not a theoretical, interest in the outcome. In the Proposition 8 case, that is an issue because the right of the sponsors of the measure to be in court has been challenged by the other side. In the DOMA case, the right of the federal government to appeal has been challenged by the Republican leaders of the House of Representatives, because the government got what it wanted in lower courts–a decision to strike down DOMA’s benefits restriction. The government, in turn, has challenged the GOP leaders’ legal right to make a defense of DOMA.
Even assuming that those potential obstacles are overcome, it is far from a certainty that there are five members of the court who would vote to strike down either the California law or DOMA. As is so often the case, the outcome could turn on how Justice Anthony M. Kennedy reacts to the challenges, since there is a reasonable prospect that the other eight justices might split evenly.
A decision against Proposition 8 could be on the narrower basis that the appeals court in that case had reached, and that might mean a California-only ruling. And a decision against DOMA could be on a states’ rights basis, on the premise that marriage is something that the states traditionally have controlled, and that might say very little about marriage equality as a national matter.
By early afternoon Tuesday, and again by early afternoon Wednesday, the first signs may well have emerged from what was said from the bench on those mornings.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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