By Ian Millhiser on Mar 26, 2013 at 8:30 am
“Beginning this morning, the Supreme Court will hear two cases that could recognize the right of everyone, straight or gay, to marry the person they love. The first concerns California’s anti-gay Proposition 8, and could potentially extend the right to marry to same-sex couples in all fifty states. The second challenges the federal Defense of Marriage Act (DOMA), and could end the federal government’s practice of denying equal benefits to couples who are legally married under state law. Here is everything you need to know to understand these cases:
How The Court Could Rule
– A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states. It is fairly likely, however, that at least one member of the majority will be too cautious to require Alabama to follow the Constitution, even if they are prepared to order California to do so. If the justices punt on the Alabama question, the important question is whether they hold that anti-gay laws are subject to “heightened scrutiny,” a skeptical kind of constitutional analysis that will make it very difficult for anti-gay discrimination to withstand court review in the future.
— A One-Off: The Ninth Circuit proposed a way to strike down Prop 8 whileleaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court). The logic of the ruling was thus confined to California. Similarly, two of the Court’s most important gay rights opinions relied on very narrow reasoning that advanced equality only incrementally. It is possible the justices will repeat this performance.
– A Stealth Attack: Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process.
– A Loss: Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a severely conservative justice. Equality could lose.
What To Expect From The Justices
– The Democratic Appointees: It would be very surprising if any of the Court’s four Democrats vote to uphold discrimination. While some commentators have noted Justice Ginsburg’s critical statements about Roe v. Wade — “It’s not that the judgment was wrong, but it moved too far, too fast” — this statement suggests Ginsburg might take an incremental approach, not that she will vote to uphold discrimination. Chance of pro-equality vote: more than 90 percent.
– Justice Kennedy: Kennedy is the author of two narrowly reasoned, but very important cases upholding gay rights. His record on gay rights is not perfect, however. Kennedy cast the key vote holding that the Boy Scouts have aconstitutional right to engage in anti-gay discrimination, and he’s behaved less and less like a moderate swing vote and more and more like a hardline conservative in recent years. His vote for equality is likely, but not certain, and is more likely than not to rest on very narrow reasoning. Chance of pro-equality vote: 60-70 percent.
– Justice Thomas: Thomas is the Court’s most conservative member, but he once called Texas’ “sodomy” ban an “uncommonly silly” law, and he cares a great deal shrinking federal power until it is small enough to be drowned in a bathtub. Indeed, Thomas believes federal child labor laws and the nationwide ban on whites-only lunch counters are unconstitutional on states’ rights grounds. For this reason, it is possible he will be attracted to the claim thatDOMA violates states’ rights. There’s no chance he’ll vote to strike Prop 8, however. Chance of pro-equality vote: 20 percent on DOMA, 0 percent on Prop 8.
– Chief Justice Roberts: Roberts has a lesbian cousin who will attend the marriage arguments as his personal guest, and he once did pro bono work on behalf of gay rights activists when he was an attorney in private practice. Nevertheless, Roberts remains very conservative and has a long record of criticizing decisions that read the Constitution’s promise of equality broadly. If Roberts does vote with a pro-equality majority, it is just as likely that he will do so in order to wrest control of the opinion and narrow it as he would to extend the blessings of liberty to gay Americans. Chance of pro-equality vote: 10 percent.
– Justice Alito: Alito is probably the toughest conservative questioner on the Court, and he has emerged as a strong advocate for whatever outcome conservatives prefer. Chance of pro-equality vote: less than one percent.
– Justice Scalia: In past opinions, Scalia compared homosexuality to murder, drug addiction, bestiality, incest and child pornography. Chance of pro-equality vote: 0 percent. Chance his opinion will accuse pro-equality justices of kowtowing to the “homosexual agenda”: 99.99 percent.
Surging Support For Marriage Equality
– Marriage Equality Has Strong Bipartisan Support: Retired Judge Vaughn Walker, the first judge to strike down Prop 8, is a Republican appointed to the bench by President George H.W. Bush. Three of the court of appeals judges that voted to declare DOMA unconstitutional are Republicans. 131 top Republicans, including six former Republican governors, filed a brief supporting marriage equality.
– The American People Support Marriage Equality: Fifty-eight percent of Americans believe same-sex couples should be allowed to marry. Among adults under 30, support is at 81 percent.
The Constitution guarantees “the equal protection of the laws” — and that includes same-sex couples. As the Supreme Court has explained, this guarantee is most robust when applied to groups that experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” LGBT Americans undoubtedly fit this description, and thus neither DOMA nor Prop 8 can stand.”