Editor’s note: During the Supreme Court’s summer recess, the blog is publishing a series of posts that explain, in non-legal terms, some of the most important cases that the Court will consider in the new Term that starts October 1. This is another in that series. It explains the cases raising constitutional issues about same-sex marriage. Beginning next Monday, the blog will be hosting a symposium on those issues.
“Marriage,” the Supreme Court once said, “is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred…. It is an association for as noble a purpose as any involved in our prior decisions.” It is small wonder, then, that countless numbers of devoted couples wish to enter that hallowed institution. Whether it is open to all, though, is as deeply controversial a question as any in American society. The Supreme Court is about to take on the constitutional implications of that question.
Actually, the Court has been seeking to answer variations of that question since 1878, but it has been more than four decades since the Court last ruled on as controversial a marriage dispute as the one it now faces: marriage for same-sex couples. In 1967, in the case Loving v. Virginia, the Court ruled that states could no longer bar marriages of a man and a woman of different races – a decision now having some echoes in the gay marriage controversy.
In a still-lengthening list of appeals now at the Court, the Justices are being asked to decide whether the Constitution does require full marriage equality, how far government may go to promote or prevent it, and how national and state governments divide up the power to regulate it.
The cases filed so far, and the ones on the way to the Court, offer the Justices the opportunity to rule widely, or narrowly. While the Court also has the option of refusing to decide any of the cases, almost no one expects it to remain on the sidelines. In a way, this issue has been building toward a fundamental test in the Supreme Court since 1993, when the Hawaii Supreme Court became the first court in America to rule that restricting marriage to a man and a woman had to satisfy the same rigorous test as discrimination in marriage on the basis of race.
The Hawaii Supreme Court decision in the case of Baehr v. Lewin (later overturned by the state legislature) led directly to action by Congress in 1996 to pass the Defense of Marriage Act, which provides that every federal law that mentions marriage in any way (of which there are more than a thousand) only applies to marriages of a man and a woman.
The legal momentum on the issue built further in 2003, when a divided Supreme Court recognized constitutional protection for the intimate relations of gay and lesbian adults and a divided Massachusetts Supreme Judicial Court became the first to actually establish a legal right for same-sex couples to wed – but under the state constitution, not the national Constitution.
Over the years since then, public opinion polls have started to show some changing attitudes about opening marriage to gays and lesbians. Lately, the apparent shift has been strong enough to prompt a Harvard law professor, Michael Klarman, to write in a new book: “In 2012, it is hard to remember what a radical concept gay marriage was in 1990.”
Whether that shift will have an impact on the Justices of the Supreme Court is one of the questions lurking in the new cases. In fact, when high-profile lawyers four years ago filed a major lawsuit seeking to gain marriage equality under the Constitution for same-sex couples, they said candidly that they hoped the concept would gain in public favor in the years they knew it would take to get that case before the Justices, perhaps making a difference at the Court.
That case is now at the Court, the best-known of the new cases and the one with the most potential to produce the widest possible decision for – or against – same-sex marriage. That is so because the case involves a state’s flat ban on such marriages and whether that interferes with the federal guarantee of legal equality, in the Fourteenth Amendment.
At issue is whether the Court will strike down “Proposition 8,” an amendment to the California constitution that the state’s voters narrowly approved in 2008. Two lower federal courts, for quite differing reasons, ruled that “Proposition 8” must fall. The most recent of those two, and the one that now matters, was issued in February by a divided Ninth Circuit Court of Appeals in San Francisco. It was written by that court intentionally to be narrow. The court, indeed, said it was deciding nothing at all about whether there is a constitutional guarantee of marital equality for gays and lesbians.
The result in that court was that, because California had once allowed same-sex marriages (under a state supreme court ruling), it did not have the constitutional authority to take away that right, when it did so at least partly out of hostility to homosexual identity. California has guaranteed same-sex couples all of the legal rights that married couples have except marriage itself, and to deny only that legal right after once allowing it was discriminatory, without any justification, that court concluded.
If the Supreme Court were to agree with that result, the outcome might not have much impact beyond California, because no other state that once had allowed same-sex marriages has moved to take it away. But those who wrote the ballot measure and got it passed are asking the Justices to rule broadly that, because the definition of who can marry has always been a power left primarily to the states, a state is constitutionally free to choose to protect the traditional concept of marriage by limiting it to a man and a woman. They have argued that recognizing same-sex marriages would seriously harm traditional marriage, with its emphasis on child bearing and child rearing by opposite-sex parents.
If the Court were to agree with that argument, it could be the end of same-sex marriage as a federal constitutional right, leaving the issue to be worked out, state by state (or to be settled by a federal constitutional gay marriage amendment, which would be very difficult to bring about).
Supporters of marriage equality for gays and lesbians are urging the Justices to refuse even to grant review of the “Proposition 8” case, mainly arguing that it is primarily limited to California, and that the whole issue should be allowed to develop further in lower courts before the Justices face the ultimate constitutional question of equality.
Most of the other same-sex marriage cases now awaiting the Supreme Court’s attention involve the Defense of Marriage Act. As noted, Congress passed that law, and President Clinton signed it, sixteen years ago, at a time when there was alarm at what was happening in Hawaii and the prospect that the idea might spread to other states. Congress wrote into that law two sections: one that defined marriage for all federal purposes as involving a man and a woman, and one that told states that they had no obligation to officially accept a same-sex marriage performed in another state. Only the first of these is now at issue before the Court. The practical impact of that federal definition is to deny a whole host of marital benefits – such as filing joint tax returns, or getting a break on estate taxes – to same-sex couples who had been allowed to marry.
The cases – popularly now known as the “DOMA” disputes – do not raise any question about whether gays and lesbians have a legal right to marry. That’s because all of the individuals involved in challenging the federal definition were married under state laws allowing them to do so.
The denial of benefits based on marital definition has now been found unconstitutional by one federal appeals court (the First Circuit Court of Appeals in Boston), and by several trial judges in lower federal courts across the country.
The federal government previously had defended the DOMA definition in federal court cases, but last year, the Obama Administration changed its position, and began arguing that the provision violated the constitutional guarantee of equality. Since then, the law’s constitutionality has been defended by the Republican leaders of the U.S. House of Representatives. Congress, the GOP leaders have argued, has clear authority to decide who is to benefit, or not, from federal laws, and thus to act to protect the concept of traditional marriage.
There are now four categories of DOMA appeals at the Court: by the Obama Administration, to make sure the federal government is heard on the issue; the House GOP leaders, to defend DOMA; the same-sex married couples, to challenge DOMA on behalf of individuals affected by it; and the state of Massachusetts, to challenge DOMA over its impact on state control of marital definition.
The Court has the option of choosing among the DOMA cases for review, but review seems almost certain, for two reasons: a federal law has been struck down, and the Court rarely leaves such a result unreviewed; and all sides in the dispute agree that the Court should now act to settle the constitutional question. The Court may start acting on those cases in a matter of weeks.
One other case related to the underlying issue of gay equality is an appeal by the state of Arizona, defending a state law that assures health care benefits to married couples who work for state agencies, but only if their marriage involves a man and a woman. Arizona is one of the states that bans same-sex marriage, so no state employee who is gay or lesbian and is in a committed relationship is eligible for the health care.
If any cases are accepted for review, the Justices will hold one or more hearings on them, probably in January or February, and issue final decisions by the end of the coming Term, by the end of June.