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!)
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!
