Breaking News

Same-sex marriage IV: The Court’s options

This the fourth and final article in the series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.  The Court is scheduled to take its first look at that issue at its private Conference this morning.  This article discusses the various options open to the Court for dealing with those cases.  As soon as the Court announces any actions on these cases, the blog will report that.  The three prior articles in this series can be found here, here, and here.


The Supreme Court, facing a series of cases on related issues, usually will pick only some of the cases but do so on a plan that allows for full if not necessarily complete action on all the key points.  Last Term, for example, it had a variety of petitions on the constitutionality of the new federal health care law, and carefully selected the cases that raised the issues of most concern to the Justices, but that did not embrace everything that they had been asked to resolve.  It did the same thing in 2003 with a collection of cases on campaign finance law.  The Justices, it seems likely, will do the same with the ten petitions coming before them this morning on the constitutionality of same-sex marriage.

It also is probable that the Court may hold more than a single hour of argument on just one petition.   It could decide to consider only a single petition, if it opted to rule quite narrowly.  But no one of the pending cases embraces all of the issues, so a more extended review appears to be in store.

Among the ten petitions, there are only three laws that are at stake; all have been struck down by lower federal courts.   One is a federal law, the 1996 Defense of Marriage Act, limiting access to federal marital benefits or programs to marriages of a man and a woman.  The other two involve state laws.  One is a 2009 Arizona law, “Section O,” limiting marital benefits for state employees to those who can marry in the state, and gays and lesbians are barred from marrying.  The other is “Proposition 8,” the state constitutional amendment approved four years ago by the voters of California, withdrawing a right of same-sex couples to get married in that state after that right had been established by the state supreme court.

Combined, the cases raise five principal issues, but the Court may not grant review of all of them.

The five main questions are: (1) whether a one-line decision by the Court, in the 1972 case of Baker v. Nelson, settled the whole dispute by allowing states to confine marriage to one man and one woman; (2) what is the constitutional test to be applied to laws that are challenged as discriminating against gays and lesbians; (3) did Congress act unconstitutionally in passing the Defense of Marriage Act (DOMA); (4) did Arizona’s legislature act unconstitutionally in passing the “Section O” law; and (5) did California’s voters act unconstitutionally in approving “Proposition 8” as part of the state constitution.

Interestingly, and perhaps contrary to some popular expectations, the Court is not being asked in any one of the cases to establish a constitutional right for gays and lesbians to get married.  The most that it is being asked to decide is that, because marriage is a fundamental right, it cannot be withheld from gays and lesbians.  The practical effect of that somewhat narrower request, if the Court grants it, may not be much different than declaring a new right of homosexuals to marry, but it might be an easier one for the Court to accept since that would not announce a new constitutional right specific to gays.

There are some side issues that the Court may or may not act on: is the federal government a proper party to be raising the DOMA issue since its view that DOMA is unconstitutional won in lower courts; is someone else — supporters of DOMA — a better party for that role; do some of the gay and lesbian individuals seeking review have factual or procedural flaws in their cases?  Those, though, are issues that may have an influence on which cases ultimately get picked for review.   Another factor in that choice may be whether Justice Elena Kagan, who formerly was U.S. Solicitor General when at least one of the cases was developing in lower courts, will have to disqualify herself — a prospect that might turn the Justices away from that particular case.

It is close to a certainty that the Court will grant one or more petitions on the fate of DOMA.   It is not a certainty that the Court will do something it has never done before: define an explicit constitutional test for use in gay rights cases.  It can simply assume a standard without making it definite.  It has done that a time or two.  It is also not a certainty that the Justices will grant review either of “Section O” or “Proposition 8,” although the Court may well be tempted to decide something about state powers, and those are the only laws that test those powers.   It is more than likely that some of the ten petitions will simply be put on hold, to be resolved after a final decision comes out on the granted case or cases sometime before next summer.

This is the situation confronting the DOMA law as the challenges to it reached the Court: a variety of lower courts have recently struck it down, there is a split in the circuit courts on that constitutional point, the federal government has filed some of the petitions on that issue, and the House of Representatives’ Republican leadership is also fully involved, taking up the defense of DOMA in the wake of the Obama administration’s decision to stop defending it in court.  That combination of circumstances appears to be more than enough to win a grant, so the constitutionality of DOMA’s Section 3, the marital limitation, is a good bet for review.

The federal government and the House GOP leaders disagree on which case or cases the Court should review on DOMA, but they have agreed, if their first choice is not granted, on what the back-up choice should be.  The Obama Administration prefers a grant on DOMA in its own petition in United States v. Windsor (docket 12-307), from the U.S. Court of Appeals for the Second Circuit, which sits in New York.  That case raises both the issue of a constitutional standard of review and the validity of DOMA Section 3.  The House GOP chiefs prefer their own petition in Bipartisan Legal Advisory Group v. Gill (docket 12-13), from the First Circuit in Boston.  But that is the case that seems sure to lead to a recusal by Justice Kagan; she had a part in government briefing in that case in lower courts.  That case, though, does raise both the standard-of-review issue and DOMA’s constitutionality.

Both the government and the House Republican leaders appear to have settled on their second choice for review, and that is a case from a federal district court in San Francisco, rather than from a federal court of appeals.   The government has the petition on that case: Office of Personnel Management v. Golinski (12-16).  It, too, involves both the standard-of-review issue and DOMA’s constitutionality.

Gay rights advocates, as they contemplate the Justices’ review of DOMA’s validity, hope that the Court will take a couple of those cases so that the impact of the ban on benefits on same-sex couples would be examined in a variety of different personal contexts, ranging from the right to file joint federal tax returns to death benefits under Social Security and health benefits for federal employees.

At one time, when lawyers initially were pressing their challenge to California’s “Proposition 8,” that case had appeared to be the broadest recent challenge to laws that allegedly discriminate against gays and lesbians.   A federal judge in San Francisco made a sweeping decision in the case, recognizing what appeared to be a constitutional right of gays and lesbians to marry, and embracing the most rigorous constitutional standard for judging gay rights cases.  But the case then went to the Ninth Circuit, which issued a far narrower decision there.

“Proposition 8” was struck down by the Ninth Circuit on the premise that it took away a right that had already existed — the right of same-sex couples to marry under the state constitution, previously declared by the state supreme court.  In no other state have gays and lesbians had that right and then had it taken away.  So the ruling in that case, as it reached the Supreme Court, appeared to be a California-only decision.   Moreover, it closely tracked a prior Supreme Court ruling on gay rights (Romer v. Evans, in 1996), striking down a Colorado constitutional amendment that had put homosexuals into a special disfavored category, taking away rights they previously had to seek laws protecting them from discrimination, when that withdrawal was done at least partly out of hostility to those individuals’ sexual identities.

The backers of “Proposition 8” have taken the case to the Supreme Court, and their lawyers have crafted the question they want the Court to review as a broad one about states’ powers — that is, does the Fourteenth Amendment’s guarantee of legal equality bar a state from adopting the traditional definition of marriage — a legal union of a man and a woman.  If the Court sees that as the real issue, rather than the narrower holding of the Ninth Circuit (an existing right cannot be taken away out of dislike of homosexuals), it could take on that case, too.  (That case is Hollingsworth v. Perry, docket 12-144.)

If the Court were to grant review in “Proposition 8,” and rule broadly, it might well have an impact on the more than three dozen states that have barred same-sex marriage, either in a state law or a state constitutional amendment.  Those other laws might be more endangered if the Court were to adopt a tough new constitutional test for gay rights cases.   In fact, dissenting judges in two of the cases now on the Justices’ docket have argued that, if a rigorous test of constitutionality is adopted by the Supreme Court, it could sweep away all state laws limiting marriage to a man and a woman.

The Arizona case, involving the “Section O” law on rights of married state workers, is another pending case that presents the issue of states’ rights, but the case is still in a preliminary stage, thus perhaps reducing its chances of review.  (That case is Brewer v. Diaz, docket 12-23.)  “Section O” is somewhat like DOMA’s Section 3, limiting marital benefits.  The state law limits those benefits in a way that, although neutral as written, disfavors gays and lesbians because they are barred by a state constitutional amendment from getting married; thus, if one of the partners in a same-sex relationship is a state worker, that worker’s employment benefits — like health insurance — cannot be shared by the other partner.

The Court’s docket shows that all ten of the cases are scheduled for initial consideration at this morning’s private Conference.  The Justices have the option of releasing orders, if they grant new cases, as soon as this afternoon.  Otherwise, any orders granting cases would come out with other orders next Monday at 9:30 a.m.

Recommended Citation: Lyle Denniston, Same-sex marriage IV: The Court’s options, SCOTUSblog (Nov. 30, 2012, 12:05 AM),