Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.
The gay marriage court cases are a bit complicated because they are dealing with a few different issues. I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.
It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8. I covered it somewhat obsessively when I lived in California. I haven’t covered DOMA as obsessively.
PROP 8
Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.
In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state. That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again. Immediately, the state was sued by several gay couples who wanted to be able to get married.
The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad. He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them. What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means. In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.
The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.
As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else. Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.
The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions. Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in. California ruled that this was fine, but it’s still being brought before SCOTUS. According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.
THREE POSSIBILITIES
1. Gay marriage is made legal in all states (Broadest ruling)
2. Gay marriage is made legal in California (What I think will happen)
3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure
DOMA
Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights. DOMA states that people who are gay married do not have access to federal marriage benefits. This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.
Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.
I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not. I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.
DOMA is not my area of expertise, though, so I’m happy to hear other feedback.
