Those of us who support marriage equality are anticipating two rulings from the Supreme Court of the United States.
One, Windsor v. United States, will decide on the constitutionality of key points of the federal Defense of Marriage Act (DOMA). This law prevents federal recognition of same-sex marriage. In Edith Windsor’s case, she had to pay a large estate tax to inherit her wife’s estate because the IRS does not recognize her legal marriage in New York.
I’ve read several analyses over the past few weeks, and all indications are that SCOTUS will strike down at least the parts of DOMA that fly against the “full faith and credit” clause of the Constitution, where laws in one state must be recognized in another — and federally. Depending on how they rule, this will pretty likely have some far reaching impact throughout the country. This is the case that the Obama administration refused to defend, citing its unconstitutionality.
Cornell University Law School has a detailed rundown of the case. Their abstract concludes:
The Obama administration counters that the use of sexual orientation to decide who gets benefits is a suspect classification that deserves higher scrutiny. Under that level of higher scrutiny, the Obama administration argues that DOMA is impermissible. This case can affect what role the federal government can play in defining marriage and who in the federal government can defend the government’s laws. Not only could this case provide large tax savings to Ms. Windsor herself, but it can also make federal benefits available to other same-sex couples who are legally married under the laws of their state.
The other case, Hollingsworth v. Perry, is a decision on the constitutionality of California’s Proposition 8, which was a referendum that stripped same-sex marriage rights from California citizens. Marriage Equality was legal in that state for a few months when their Supreme Court mandated it. Shortly thereafter, voters overturned that decision.
As I understand it, this one could go one of three ways. First, they could rule against standing. Here, they could decide that the “standing to appeal” would be denied, allowing District Judge Vaughn Walker’s decision to stand. Ari Ezra Waldman explained thusly on Towleroad:
If you remember, when Hollingsworth got started, the law was initially defended by the state government. But, after Judge Vaughn Walker declared that bans on the freedom to marry violate equal protection and due process, neither then-Governor Schwarzenegger nor his successor, Governor Jerry Brown, had any desire to challenge that ruling. After the court thwarted a conservative California county’s attempt to become party of the case after the fact, the only party left to defend Prop 8 was the group that wrote it: ProtectMarriage and ProtectMarriage.com. However, ProtectMarriage is just a small group of ordinary Californians who have no direct skin in the game other than the fact that they wrote and advocated for the law. The State of California is the party with a “direct injury”: if Prop 8 dies, it has to change it’s behavior and start issuing marriage licenses to gay couples. So, if California is the one “injured,” how could a small group of people with no connection to the California government have standing?
Waldman’s analysis here is particularly interesting — and he points out that the State of California dropped all defense in the case. A private coalition of anti-gay groups took up the fight, and appealed it all the way to the supreme court. According to Ted Olson, the famously conservative Republican super-attorney who argued for marriage equality in this case, the Court appears “poised” to avoid ruling on the merits of the case by denying standing.
Boies conceded that proponents of Proposition 8, the California law banning same-sex marriage, could end up losing because the court will rule that they were ineligible to appeal a lower court ruling that the law was unconstitutional. A victory on those grounds would be a victory for Boies and his fellow lawyer Ted Olson, but not the one they wanted.
“The question is, do those people have a standing to come before the court and defend it? Under Supreme Court precedent, they probably do not have standing,” Boies said. “The court is very restrictive in terms of to whom they grant standing, and they never granted standing to private citizens who do not have a fiduciary relationship to the state. And one way that the court could solve this particular case is to hold that these people do not have standing.”
If the Court rules against standing to appeal, California will get marriage equality, but the rest of us will have to wait.
The other two scenarios — where the Court rules on the merits of the case are a little less likely. If they do, it would depend on whether or not they rule for the whole of the 9th District (which includes a handful of states) or the country as a whole. Obviously, this is the preferred ruling for myself and countless other marriage equality advocates.
As of this writing, it might be tomorrow, or it might be next week. But either way, the legal argument on marriage equality is about to change forever.