How Far Will High Court Go On Marriage?

Advocates of same-sex marriage have every reason to expect the Supreme Court to take their side next year. The big question is: How far is the court prepared to go?

At a minimum, I expect the high court to rule that California voters acted unconstitutionally in 2008, when they amended their state charter to forbid gay marriage after 18,000 same-sex couples had already wed in the Golden State. I also expect the justices to uphold a lower court ruling striking down part of the federal Defense of Marriage Act (DOMA), the 1996 statute that said the federal government would not recognize same-sex marriages legally performed in states or foreign countries that permit such unions.

Yet if the court goes no further than those two positions, the political and legal struggle over gay marriage will rage pointlessly on, probably for years. This is because, while nine states and the District of Columbia now authorize same-sex marriage, 37 other states prohibit recognition of such marriages, either through their laws or in their state constitutions. Unlike every other sort of legally married couple – including people married to their cousins, people married after “quickie” foreign divorces from former spouses, and people married to adolescents in jurisdictions with unusually early ages of consent – a same-sex married couple is not considered “married” at all times, for all purposes, in all places.

This is an unworkable situation that cannot persist for very long, yet it remains to be seen whether the Supreme Court is prepared to declare the unequivocal right of same-sex partners to marry, or at least to have their marriages respected, wherever they happen to be.

Last week the court agreed to consider two cases involving same-sex marriage. In Hollingsworth v. Perry, the Ninth U.S. Circuit Court of Appeals invalidated California’s Proposition 8, the voter initiative that amended that state’s constitution to ban gay marriage, while in United States v. Edith Windsor, the Second Circuit found that DOMA violated the equal protection rights of an elderly woman who was forced to pay a large estate tax following her spouse’s death, when such a tax would not have been required of an opposite-sex spouse. (The Obama administration has concluded that DOMA is unconstitutional and declines to defend the statute in court, but it continues to enforce the law on tax and other matters.)

Neither case directly presents the question of whether one state can refuse to recognize a marriage that is valid in another state. Another section of DOMA authorizes such nonrecognition, but the court would have to go out of its way to address that question in either of the two cases it has agreed to hear. Will it? We won’t know anything for sure until the end of the court’s current term in June.

By that time, it will be exactly 20 years since same-sex marriage arrived on the public and political radar. Hawaii’s Supreme Court ruled in 1993 that the state’s constitution gave gays the right to marry, but voters amended the constitution before any such marriages took place. Other states began adopting anti-gay-marriage legislation, and Congress took up DOMA, sponsored primarily but not exclusively by Republicans, during the 1996 presidential and legislative campaigns.

The result was a political landslide. With virtually every congressional Republican and a majority of Democrats backing it, DOMA passed the House of Representatives 342-67 and the Senate 85-14.

President Bill Clinton promptly signed the bill, taking gay marriage off the table in his race for re-election. He was not the only big-name Democrat to choose discrimination and political expediency over any principle he might have felt was applicable. Others who backed DOMA included Sens. Joe Biden of Delaware (now vice president, who came out in favor of gay marriage during this year’s campaign) and Harry Reid of Nevada (now Senate majority leader), as well as such staunch liberals at South Dakota’s Tom Daschle, Vermont’s Pat Leahy, Michigan’s Carl Levin and Maryland’s Barbara Mikulski.

Vermont’s Supreme Court followed Hawaii’s lead in 1999, ruling that gays were entitled to the same domestic relations rights as heterosexuals. The state soon adopted civil unions as the functional equivalent of marriage, though the nomenclature itself suggested that the relationship was something less than fully equal. Massachusetts, also through court action, became the first state to actually recognize and authorize same-sex marriages in 2004. Since that time, public opinion has moved rapidly in favor of same-sex couples.

The Supreme Court’s four liberal justices – Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer – seem virtually certain to uphold gay marriage in the pending cases. So too does the typical swing justice, Anthony Kennedy. He authored the 2003 majority opinion in Lawrence v. Texas that struck down state laws against homosexual conduct, as well as a 1996 ruling that overturned a Colorado initiative which had tried to ban local anti-discrimination ordinances that applied to gays.

I suspect Chief Justice John Roberts will join a pro-gay-marriage decision, though there is not much on which to base a prediction other than my belief that he does his best to apply the law, rather than his personal preferences, to the cases before him. Justice Samuel Alito is an unknown. The remaining two staunch conservatives, Justices Antonin Scalia and Clarence Thomas, were dissenters in Lawrence, so we know at a minimum that they did not believe in even minimal gay rights as recently as a decade ago. Thomas, though a strong defender of free speech, has not shown any consistent respect for anybody’s privacy rights other than his own. Scalia’s thinking may have evolved, or he may at least be willing to endorse the precedent set out in Lawrence that he opposed at the time. But I would not bet on it.

Still, the court has a history of seeking unanimity, or at least a broad consensus, when it renders decisions on fundamental rights. Brown v. Board of Education was a unanimous decision, as was Loving v. Virginia, the 1967 case that struck down laws against mixed-race marriage. (It so happens that Thomas is part of a mixed-race marriage and that he and his wife dwell in Virginia. We will see if this creates any irony in his position on gay marriage.) It would be nice, for the sake of country and of the court’s place in history, if it comes out with a broad ruling in favor of equal marriage rights for all Americans, wherever they reside.

I don’t know whether the court will go that far. Regardless, there is no turning back. Same-sex marriages are here to stay. Americans are quickly learning to accept and embrace this fact, and the law will ultimately have no choice but to follow.

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