How will the Supreme Court rule on same-sex marriage?

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LGBTQ Legal Outlook Mark Johnson Roberts

What the justices said and what they’re likely to decide on DOMA and Prop. 8

By Mark Johnson Roberts, PQ Monthly
It has been 20 years since Hawaii’s Supreme Court's decided that state's marriage law might be unconstitutional, and 17 years since Congress passed the Defense of Marriage Act (DOMA) in response. Like everyone else, I was fascinated last week to get an initial look at how the U.S. Supreme Court might view the issue of marriage rights for same-sex couples. This year, two cases presenting issues related to same-sex marriage are before the court. One case, “United States v. Windsor,†challenges DOMA's limitation of federal marriage laws to opposite-sex couples. The other, “Hollingsworth v. Perry,†is a federal challenge to Proposition 8, California's state constitutional prohibition of marriage for same-sex couples. Last week, both cases came up for argument. The posture of these cases is highly unusual. As a result, both cases present procedural obstacles to the court's consideration. In each case, the government official charged with the law's enforcement (the U.S. president and the governor of California) agreed with the plaintiffs that the law was unconstitutional. In each case, a group representing the proponents of the law was allowed to intervene, meaning that the group was allowed to become a party just like the other parties in the case and to argue its position in the place of the argument that the president or governor might have made in the law's defense. The problem is that the two groups — some members of the U.S. Congress in the first instance and the chief petitioners for the ballot measures in the latter — do not have the kind of real, concrete injury that is generally required for a federal court case to proceed. Instead, they argue from a generalized interest in having the law enforced, which ordinarily is not enough under the constitutional principles that give a federal court power to hear a case. Although the court was clearly annoyed by the procedural problems, it seemed unlikely from the comments at the “Windsor†argument, in particular, that they will stand in the way of a decision being made. Edith Windsor, a New York widow, was charged with a $365,000 federal estate tax bill when her wife died, which she would not have incurred had she been married to a man. That fact, together with the Obama administration's continued enforcement of the law in other contexts, appears to be enough in the minds of most of the Supreme Court justices to get past the procedural issue and to reach the merits of the case. A similar argument seems likely to carry the day in “Hollingsworth†as well, although in that case the justices might avoid deciding the merits for other reasons. On the merits, it appears to most commentators, and to myself as well, that DOMA will likely be overturned. The attorney for the members of Congress, former Solicitor General Paul Clement, did a masterful job of trying to define the issue as something other than discrimination, but the justices were basically having none of it. The court's five more liberal justices — Breyer, Ginsburg, Kagan, Kennedy, and Sotomayor — peppered him with questions throughout. Ginsburg famously referred to the federal statute as creating a "skim-milk marriage" for gay people. While the precise reason for the court's ruling — a breach of federal power or a discrimination argument — remains unclear, it seems unlikely that DOMA will stand. The outcome of the California case is harder to predict. While the justices may conclude that they have the power to decide the case, there is a strong possibility that they will "punt." When the court receives an appeal like this, the first question is always whether it will agree to hear the case. Here, the court agreed to do so. But sometimes, in the process of litigating a case, the court concludes that it shouldn't have taken it in the first place. The outcome in such cases is a dismissal of the case as "improvidently granted." There is clearly some sentiment on the court for disposing of the case in this way. If the court decides the merits, there appears to be a slender majority for doing something positive about marriage equality. Kennedy surely will provide the swing vote, and, although his position likely is still evolving, he did express concern for the children of gay couples and for their interests in having their parents' relationships legitimated. The decision, frankly, is likely to be a political one as much as anything. While the court is unlikely to endorse a "separate-but-equal" status for same-sex unions, it will be cautious about creating a nationwide right for same-sex couples to marry. Even if five justices agree that should be the law, the court will not want to be seen as getting too far out ahead of the public's evolution on the issue. My prognostication is this: The court will rely on its already-developed case law for viewing discrimination based on sexual orientation rather than creating new law. Those older cases hold, in essence, that a state that wants to discriminate must advance some legitimate government purpose for doing so. So far, the states confronted with that burden have been unable to carry it, and California cannot do so here, either. Each of the reasons it advances to justify the distinction has already been undercut by its own law, which gives all the rights and obligations of marriage through its civil union statute. This is the Obama administration's so-called "eight state solution," and it would impact each of the states that have adopted civil unions, including Oregon. While the justices were critical of this solution at argument, it holds great political appeal. It allows the court to adopt an incremental approach, which it likes to do in contentious cases. It would apply only to those states that have adopted civil union laws, where presumably resistance to marriage equality is at its lowest. And it would allow the remaining states to come to their own conclusions on the issue for the time being. It seems clear that the LGBTQ equivalent of “Loving v. Virginia†— the case that legitimated interracial marriage across the United States — will come someday, but it may not be upon us yet. Still, it's a long time until the court issues its decision in June. Opinions could, and undoubtedly will, evolve among the justices between now and then. It's always hard to guess the outcome of a case from what happens at argument, and in this situation perhaps more so than others. I'll be watching along with all of you to see what happens.
Portland attorney Mark Johnson Roberts is a former president of the National LGBT Bar Association and of the Oregon State Bar. He practices family law at the Gevurtz Menashe law firm with a particular focus on LGBT family law issues. He can be reached at