For both supporters and opponents of same-sex marriage, next week will mark a historic event: the Supreme Court will hear two cases relating to the laws and amendments that seek to limit same-sex marriage and whether liberties protected by the Constitution grant same-sex couples the right to get married. Whether such laws as the Defense of Marriage Act and California’s Proposition 8 are constitutional or not are the issues that the high court will grapple with. But the rulings will not simply decide whether same-sex couples have the right to marriage or not; indeed, there are many ways the court could rule. However, any finding the court makes is bound to be historic.
On Monday, the Court will hear the case Hollingsworth v. Perry, which challenges the constitutionality of California’s Proposition 8. Passed in 2008, Prop 8 overturned a California Supreme Court decision which granted gay couples the right to marry. The case will hear arguments on the constitutionality of Prop 8, and the ruling could possibly have implications for states other than California. On Tuesday, the Court will hear United States v. Windsor, which challenges the Defense of Marriage Act (DOMA), a 1996 law which bars federal recognition of same-sex marriages, even if such marriages have been legalized by the states.
United States v. Windsor: The No-Brainer
Edith Windsor and Thea Spyer of New York City were married in Toronto in 2007, before the state of New York legalized marriage for same-sex couples. Under the Defense of Marriage Act, their union was not recognized by the federal government and thus none of the protections granted heterosexual couples were extended to them. As a result, when Spyer died in 2009, Windsor was left to pay $363,000 in federal estate taxes — a levy she would not have been required to pay had her marriage been recognized by the federal government.
Windsor sued, challenging the constitutionality of DOMA. In 2012, a District Court in New York sided with her, declaring DOMA unconstitutional under the Fifth Amendment. The Amendment states that “no person shall…be deprived of life, liberty, or property, without due process of law.” The $363,000 levy, the Court found, was an unconstitutional deprivation of property. It ordered the federal government to grant Windsor a refund. A Court of Appeals affirmed the lower court’s decision, paving the way for the case to go to the Supreme Court.
The reason that Windsor is truly unique is that the Justice Department will not defend DOMA at the Supreme Court. Normally, the Solicitor General defends the federal government when an act of Congress is challenged at the high court. However, President Obama, citing doubts about the constitutionality of DOMA, directed his Justice Department to not defend the law. In fact, Solicitor General Donald Verilli will actually make a brief appearance opposing the law.
In place of Verilli, Republican leaders in the House of Representatives appointed former Solicitor General Paul Clement to defend the constitutionality of DOMA before the Court.
Attorney General Eric Holder also stated that the Obama Justice Department had determined that laws classifying people based on sexual orientation — such as DOMA — should be subject to a higher level of scrutiny. Usually, such laws are part of a “non-suspect” class of laws, meaning that the Court needs only to determine whether the government has a legitimate reason for the law. Higher levels of scrutiny, usually reserved for laws that classify people based on gender or race, mean that the classification of people based on a certain characteristic or identity must be shown to further a specific government interest. Looking at DOMA with heightened scrutiny, therefore, dramatically reduces the chance that the Court will uphold the law. The Court of Appeals which heard Windsor held that DOMA should be subject to an intermediate level of scrutiny. It is yet to be seen whether the Supreme Court will follow the lower court’s example. It would be the first time that the Supreme Court looked at laws concerning sexual orientation with a higher level of scrutiny.
If the Court does look at DOMA with a heightened level of scrutiny, the Fourteenth Amendment’s equal protection clause could be applied as an argument against the law, adding to the already-existing Fifth Amendment basis for overturning it.
If not swayed by these arguments, the court’s more conservative justices might find that DOMA violates the Tenth Amendment, which states that powers not granted to the federal government are reserved to the states and the people. Since the Constitution does not give the federal government the right to regulate the institution of marriage, a Tenth Amendment argument could be used to label DOMA as an unconstitutional government intrusion on states’ rights.
On the other side, the constitutional arguments supporting DOMA are very slim. Given the Fifth Amendment, Fourteenth Amendment and Tenth Amendment arguments against the law, along with the fact that two lower courts have already found it unconstitutional, it is unlikely that the Supreme Court will allow the law to stand. In fact, it wouldn’t be surprising if the decision were 9-0. Therefore, same-sex couples in the nine states that have legalized same-sex marriage can soon look forward to enjoying federal rights and benefits. No matter the finding, though, the decision in Windsor will not grant or categorically deny same-sex couples in other states the right to marry. That issue will be settled by the other case to be heard by the Court: Hollingsworth v. Perry.
Hollingsworth v. Perry: Three Possible Outcomes
After the California Supreme Court issued a ruling that granted same-sex couples the right to marry, opponents of same-sex marriage started a ballot initiative, known as Proposition 8, in order to enshrine a ban on same-sex marriages in the state constitution. In November 2008, the proposition narrowly passed, with 52% of California voters supporting it. By that time, 18,000 same-sex couples in California had already been married.
Several plaintiffs, including Kristin Perry of Alameda County, sued the state government on the grounds that Prop 8 was unconstitutional. Perry and her partner, Sandra Stier, were denied a marriage license, and sued on the grounds that the government cannot take away a right once it has been granted. Indeed, before the passage of Prop 8, 18,000 same-sex couples were wedded in California. While a court ruled that the government could not annul those marriages, it did, Perry and her lawyers argued, unfairly deny her a right she had previously been given.
Like the Obama Justice Department and DOMA, California Attorney General Kamala Harris said that she would not defend the proposition in court. Consecutive California Governors Arnold Schwarzenegger and Jerry Brown, despite being named as defendants in the case, both said that they did not support Prop 8. This left Dennis Hollingsworth, leader of the anti same-sex marriage group protectmarriage.com (which started Prop 8 as a ballot initiative), as the primary defendant in the case.
Under Judge Vaughn Walker, a District Court in California ruled Prop 8 unconstitutional. One of the main issues in contention during the trial was whether gays and lesbians constitute an “identifiable class” of people, similar to a racial group, or whether they should simply be identified as people who all exhibited a certain behavior. Should they be an identifiable class, as the plaintiffs argued, Prop 8 would be subject to heightened scrutiny by the court, increasing its chances of being struck down. After a contentious trial (which inspired the play “8” starring George Clooney), Judge Walker declared Prop 8 unconstitutional, and stated in his opinion that laws classifying people based on sexual orientation should be subject to the strictest level of scrutiny.
The Court of Appeals later affirmed Walker’s decision on the grounds that it is unconstitutional to give a right and then take it away, citing the equal protection clause of the Fourteenth Amendment. Such an action was different, the court said, from never extending that right to people in the first place. Therefore, had the right to marry not already been granted to same-sex couples, the court probably would have upheld Prop 8. Additionally, in a blow to ardent supporters of same-sex marriage, the court found that it could not rule on the broader constitutional question of whether same-sex couples should be allowed to marry nationwide, citing lack of jurisdiction.
This ruling allowed Dennis Hollingsworth to appeal the case to the Supreme Court. While United States v. Windsor is a more clear-cut case with a fairly predictable outcome, Hollingsworth v. Perry is more complicated — and more controversial. In this case, it will be more difficult for the justices to rule in favor of same-sex marriage supporters, since they would be granting same-sex couples the right to marry in a place where same-sex marriage does not already exist, while in Windsor an affirmative decision would only grant federal recognition of already-existing marriages.
There are three possible ways that the Supreme Court could rule in Hollingsworth. They could reverse the lower court’s decision and declare Prop 8 unconstitutional. They could affirm the lower court’s decision on narrow grounds, overturning Prop 8 and granting the right to same-sex marriage in California only. Or they could affirm on wider grounds, doing anything from overturning other states’ constitutional amendments defining marriage as between one man and one woman, to calling for the legalization of same-sex marriage nationwide.
The Swing Votes
While it is most likely that the Supreme Court will follow the lower court’s example and affirm the Hollingsworth v. Perry decision on narrow grounds, overturning Prop 8 but not extending same-sex marriage rights to other places, there is precedent for a sweeping decision. In the 2003 case Lawrence v. Texas, the Supreme Court struck down a Texas law banning sodomy, and by extension struck down similar laws in other states across the nation. In her concurrence, then-Justice Sandra Day O’Connor noted that she voted to strike down the law because it was not equal in application and intended to discriminate against homosexuals. Should the court follow the Lawrence precedent, it might invalidate other states’ constitutional amendments restricting marriage to heterosexual couples.
Four of the justices on the Supreme Court — Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — will almost certainly vote to uphold the lower court’s ruling and strike down Prop 8. While conservative justices Samuel Alito, Antonin Scalia and Clarence Thomas are more likely to vote against overturning Prop 8, there are two potential swing votes, making the outcome up in the air.
Chief Justice John Roberts, though generally seen as more conservative, has defected on some occasions, most notably last year in the Court decision upholding the constitutionality of Obamacare. He believes in a wide application of the Fourteenth Amendment’s equal protection clause, opposing the use of race to determine what school a child should attend, regardless of whether the intention is segregation or integration. Roberts might also apply to equal protection clause to the same-sex marriage issue and use those grounds to find Prop 8 unconstitutional.
Justice Anthony Kennedy is the other swing vote. While also seen as a more conservative justice, he, like Roberts, believes in the wide application of the equal protection clause and the Fifth Amendment’s due process clause, both of which may be used as evidence of the unconstitutionality of Prop 8. In addition, Kennedy has a relatively strong record on LGBT rights. He wrote the majority opinions in Lawrence v. Texas, striking down state bans on sodomy, and in Romer v. Evans, which invalidated a Colorado statute banning the recognition of LGBT people as a “protected class” when it comes to fighting discrimination.
One of the lawyers opposing Prop 8 in Hollingsworth, David Boies, stated in a recent interview with the USA Today that he fears that the age of the Supreme Court justices will be an inhibiting factor from a fair decision on the case, since older people have lived in times where the prevailing attitude is hostility towards LGBT people. Similarly, Sen. Rob Portman (R-Ohio), who recently announced his support for same-sex marriage, noted in an op-ed that the issue has become more of a generational one than a partisan one, with younger people overwhelmingly supporting same-sex marriage regardless of party.
A recent ABC News poll estimated nationwide support for same-sex marriage at 58 percent, the highest level in history. No other issue has undergone such a cataclysmic shift in public opinion in so short a span of time. The Court’s ruling, too, is sure to be a landmark, even if it follows the expected route of affirming Windsor, and Hollingsworth on narrow grounds. It is a reminder of the power of our judiciary system and its duty to protect the Constitution — and by extension, the liberties of the American people.