Supreme Court Rulings on Gay Marriage Expected This Week - It's gonna be big (but not as big as it could be)

Back in March, the Supreme Court of the United States considered two majorly important cases regarding gay marriage. Those of you on Facebook probably remember all the equals sign profile pictures. The official decisions in these cases are expected this week, possibly as early as Monday.

Back in March when the hearing were happening, I listed to the audio recordings of the oral arguments and found them absolutely fascinating. I wanted to share some of my thoughts and predictions, as well as a brief background on what the cases are about and their possible implications.

If you've never listened to a Supreme Court debate before, you may be surprised at how lively they can be. The lawyers for each side speak directly to the 9 justices, who frequently interrupt with questions, thoughts, criticisms, and even jokes. Highly entertaining!

Here are the links to the audio recordings if you'd like to listen for yourself. (Do it!)  

Hollingsworth v. Perry  (Prop 8) 

US v. Windsor (DOMA) 

Background: 

The Court first heard Hollingsworth v. Perry, a challenge to California's ban on same-sex marriages. Second was United States v. Windsor, a challenge to a provision of the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and prohibits the federal government from recognizing same-sex marriages, even those legally performed in states that allow it.

Even aside from the weighty substantive questions, both these cases bring up very interesting questions of standing, that is, do the parties involved have a legal right to represent their sides. 

In Hollingsworth v. Perry, the state of California (i.e. the Attorney General and the Governor) refused to defend the statute, so the defense was taken up by the official proponents of Proposition 8 (the ballot initiate that declared same-sex marriage unconstitutional after it had been briefly legalized and many marriages performed). This is highly unusual, if not unprecedented, and the Supreme Court seems to be in some doubt as to whether they should be allowed to do so. 

In United States v. Windsor, the Obama administration has abandoned the defense of DOMA on the basis that it is unconstitutional, and it was taken over by the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives. The Supreme Court has expressed concern over whether Obama's abandonment is appropriate and whether BLAG's takeover of the defense is permissible, especially considering that the Obama administration continues to enforce DOMA, while at the same time calling it unconstitutional. 

Here are some of the things that jumped out at me. Note that this is not an attempt at a complete summary or impartial analysis. Note also that I have no legal training or expertise. I strongly encourage you to listen for yourself, and I'd love to hear what you think.  

Hollingsworth v. Perry

Standing question: Do the proponents of Prop 8 have standing to defend California's gay marriage ban when the state refuses to do so?

Defense: Yes, given that this was a referendum question, allowing the state to let it be struck by refusing to defend it essentially gives the state veto power over an action of the people. Purpose of referendum is to circumvent public officials, so if the public officials fail to defend it, someone else must be allowed to do so. 

Merits:

Q: Is there any other circumstance where sexual orientation can be used to discriminate?

A: No - the lawyer for Prop 8 (Defense) couldn't think of a single example

Defense's Argument: Redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purpose and will refocus purpose of marriage from raising children to fulfilling the emotional needs of adults. The state has an interest in marriage as furthering responsible procreation.

Argument:

Infertile straight persons have a right to marry, therefore, lack of fertility can't be used as a basis for excluding gays from marriage

Some really funny back and forth between Justice Kagan and the Defense over the fertility of elderly straight couples. 

Q: When did it become unconstitutional to exclude gays from marriage?

A: When we decided sexual orientation was not a basis for discrimination

37,000 kids in CA with same sex parents

Netherlands in 2000 was the first country to legalize same sex marriage

Interesting quandary:
There's an inconsistency in saying that states that grant civil unions have a higher burden - that of granting marriage, than states that grant no rights. If you've done more, you have to do it all, where as if you've done nothing - you need do nothing.

Q: For every legitimate purpose of marriage, are same sex and opposite sex couples indistinguishable?
If yes, then no basis to discriminate
If no, (i.e. ability to have children, welfare of children) then there may be basis to discriminate
California has already established gay couples as indistinguishable for the purpose of raising children by allowing gay couples to adopt - therefore that argument doesn't apply in CA. 

Waiting is not a neutral act - it denies parents right to marry, denies children the stability of married parents

United States v. Windsor

Standing:
The legal situation here approaches the hilarious in that the United States government, the named defendant who would normally be defending the law, has actually taken the side of the plaintiff, Windsor, and asked the court to rule for Windsor and against themselves! Thus, the Congressional group BLAG, mentioned above, has taken over the defense. All 3 parties (BLAG, Windsor, and the United States) agree that BLAG should be allowed to do this, but the Supreme Court wasn't sure it agreed, so it appointed an outside party to present the argument that BLAG should NOT be allowed to take up the defense! Fascinating.

Merits:
BLAG's argument is that the Federal government's is attempting to act in an even-handed way by establishing its own single definition of marriage. That its defining marriage as between a man and a woman is actually an attempt to stay out of the fight and treat all states the same while they work out the definition of marriage on their own.

This is an interesting argument. At least one Justice was not impressed, asking if the government could then choose any arbitrary definition of marriage, as long as it applied it evenhandedly to all states.  

Outcomes and Predictions:

I found this wonderful flow chart of the likely outcomes of these cases.

After listening to the questions and comments of the Justices (admittedly, notoriously unreliable in predicting actual decisions), here are my best guesses at what the Court will rule: 

Hollingsworth v. Perry (Prop 8): I think the Supreme Court will dodge the merits of this case and kick it on standing, ruling that the proponents of Prop 8 do not have legal right to defend the law. That would leave in place the lower federal court ruling striking down Prop 8 and allowing gay marriage to resume in California, without any effect on other states.

As much as I want gay marriage to be restored in CA, I think this would be an unfortunate ruling. It would give the state government a back door veto to any referendum question by simply refusing to defend it. If the government is to be allowed to abandon defense of a law, someone needs to be allowed to step up and defend it, and here that should be the proponents of the legislation. I think the Court is not ready to make a sweeping ruling that would legalize gay marriage country-wide and will, unfortunately, take this opportunity to put it off for another day. 

United States v. Windsor (DOMA): I believe the Court will decide that defining marriage is a power held by the states and that the Federal government should not interfere, thus striking down DOMA's definition of marriage and forcing the Federal government to recognize same sex marriages performed in states that allow them. The 4 liberal justices will see it as a mater of gay rights, and conservative Justice Thomas will cast the deciding vote on states rights grounds. I could even see Chief Justice Roberts getting on board here. Gay couples legally married in their states would then be able to file taxes and inherit property as other married couples, sponsor their foreign spouses for citizenship, etc.

What do you think will happen? If you have thoughts, especially if you've listened to the transcripts, I would love to talk to you or hear what you think here!