Constitution Check: What are the Supreme Court’s options now on same-sex marriage?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, previews the various dimensions of the same-sex marriage cases that await the Supreme Court on its return in later this month.


San_Francisco_gay_marriage_protest“The overwhelming importance of the question presented provides reason alone to grant multiple cases, just as this court has done numerous times in the past. In Brown v. Board of Education, for instance, this court granted four cases from four different states….In this case, this court’s deliberative process – and the stature of its eventual decision – may likewise benefit from dealing with more than just one case from one state. None of the three states from which petitions involving same-sex marriage bans have emerged has a history and perspective on the issue exactly like the others.”

– Excerpt from a legal brief filed August 27 by lawyers for an Oklahoma lesbian couple, discussing ways that the court might use in choosing a pending case or cases for decision on the constitutionality of same-sex marriage. Currently, five petitions from three states are awaiting the Justices’ return from summer recess.


From the beginning, the Constitution has allowed for the creation of only one Supreme Court with ultimate power to interpret the basic document’s meaning.   And, throughout much of the court’s modern history, it has had nearly complete discretion over what it might decide – and, indeed, whether it decides anything at all.   So there is no such thing as a constitutional issue that is inevitably going to be settled by the Justices.

It is probably fair to say, though, that a steady stream of court rulings over the past 14 months has given many Americans the impression that it was becoming inevitable that the Supreme Court would take on the issue of same-sex marriage, and would do so soon. With very few exceptions, those decisions all went in favor of opening the right to marry equally to gay and lesbian couples. In fact, all of the federal court rulings have been unanimous; only a few state courts have disagreed.

It is sometimes forgotten, however, that some of those cases have taken years to unfold; a case from Oklahoma, now at the Supreme Court, took a decade to reach that point.   Like earlier civil rights movements benefitting racial minorities and women, the campaign to achieve access to marriage for same-sex couples has been carefully prepared and persistent, from the point where it probably began – in Hawaii, with a lawsuit by three same-sex couples in 1990. Over the years since, the campaign obviously has met setbacks.

One of the cases that had been deliberately put together with the aim of getting a ruling from the Supreme Court missed that chance last year, when the dispute over the constitutionality of California’s “Proposition 8” ban on same-sex marriage ended at the court for procedural reasons.

On the same day that happened, however, the campaign gained new momentum when the court struck down a key provision of the federal Defense of Marriage Act because, the court said, Congress in passing that law in 1993 had discriminated against same-sex couples who already were legally married in states that allowed them to wed. Although that ruling in United States v. Windsor stressed that the court was not ruling on the validity of a state ban on such marriages, the logic of that decision has since been applied by court after court in nullifying state bans.

That unprecedented wave of lower-court decisions has now sent five cases from three states to the Supreme Court in the first group of appeals, and most of those will be ready for the Justices to consider a month from now when they return from the court’s summer recess.

Contributing to an impression that the court is now going to agree to take on the controversy is the rare fact that all sides in each of the cases have agreed that the court should do so; they disagree, of course, on what they want the decision to be, but they do agree that the time to rule is now.   That does not compel the court to step in, but it certainly makes that more likely.

Still, it remains a possibility that the court will opt, for the time being, to stay on the sidelines. There are two realistic explanations for that possibility: first, the court most often takes on an issue when lower courts are deeply split on it, and the near-unanimity so far may remove that reason, and, second, the court no doubt is aware that there is political momentum on the side of same-sex marriage, so they could choose to let that play out. (Another, but far less likely reason not to take on the marriage question now would be that the court feels the entire issue was settled by a 1972, one-line decision by the court against same-sex marriage. The court, however, would have to grant review and say that explicitly, since lower courts have said the issue was not decided back then, and they would have to be overruled on the point.)

But, assuming that the reasons for deciding now all do line up, what are the options the court will consider when they start acting on the new cases? The choices involve which case or cases to accept for review, which of two core constitutional issues to take on (or both), and whether the court is ready to clarify the constitutional test for judging those issues.          Lawyers who submitted each of the five petitions have made arguments why their case is the one the court should grant, but most of them also have not resisted grants of others, too.   Each of the cases — from Oklahoma, Utah and Virginia – has something that recommends it for review, and none of them appears to have the procedural flaw that led to the court’s dismissal of the “Proposition 8” case last year.

In choosing one or more cases, the court has the option of keeping its focus limited or sweeping more broadly.   The basic issue in each case is whether states have the constitutional authority to ban gay and lesbian couples from getting married – what lawyers are now calling the “celebration” issue. While that is the most important issue, it is not the only one; another is whether states have the constitutional authority to refuse to accept the legality of same-sex marriages of same-sex couples within their states who were married elsewhere – what lawyers are calling the “recognition” question.

Some of the lawyers have suggested that the court consider both options, but some also have said that it is crucial to get an answer to the “celebration” issue first, so the focus should be kept on that.

There is also a key constitutional question that lies at the foundation of this whole controversy, and it is one that the court has never settled in any of its prior gay rights rulings.   That is the question of how rigorous a test a state must meet in order to justify treating gays and lesbians less favorably in state laws. While the federal courts that have been issuing rulings in favor of same-sex marriage have not disagreed on that point, they have used differing standards of review – from the most demanding, to the least, finding that a ban can survive none of them.

Since the court last year was able to decide the Defense of Marriage Act case without resolving that standards question, it might be able to bypass it again this time.

Americans can expect some clarity out of this array of uncertainty soon after the Justices are back at work in Washington late this month.

Recent Stories on Constitution Daily

Constitution Check: Who decides who gets to vote?

How a hurricane brought an important Founding Father to America

Constitution Check: Is shaming a legal form of punishment for crime?

10 fascinating facts about President Lyndon B. Johnson