Supreme Court actions in coming weeks could alter the landscape for same-sex couples forever: Gay couples could be marrying again in California as soon as early October, but decisions against them or other couples in several cases before the court could halt recognition by the federal government or across the country for decades.
The changes could come about because beginning next week, the justices of the Supreme Court will return from their summer recess. When they do, among the cases they will decide whether to hear are a case challenging California’s amendment that ended same-sex couples’ right to marry and a series of cases challenging the part of the Defense of Marriage Act that prohibits the federal government from recognizing such marriages.
Proposition 8: In the case challenging Proposition 8, the question before the court is whether it will let stand a decision that strikes down Proposition 8 and will allow same-sex couples to marry once again in California.
The trial court in the case had decided broadly that the U.S. Constitution requires states to allow same-sex couples to marry, but the Ninth Circuit Court of Appeals decided the case more narrowly. Instead, it held that the particular circumstances in California — where same-sex couples were allowed to marry following a state Supreme Court decision and then the initiative passed by the voters several months later took away that right — were unconstitutional.
The group that put Proposition 8 on the ballot has asked the U.S. Supreme Court to reverse the decision of the Ninth Circuit. If the U.S. Supreme Court lets the decision of the Ninth Circuit Court of Appeals stand, that decision — the narrow one about taking away a pre-existing right — would apply to the states covered by the Ninth Circuit, which, other then California, include a wide swath of Western states, as well as Hawaii and Alaska — but not the full country. No other states have begun marrying same-sex couples and then taken that right away, so the ruling would not immediately impact anywhere other than California.
If the Supreme Court does take the case, then the supporters of Proposition 8 will be arguing for the court to uphold the initiative as constitutional. If it does so and concludes the both courts were wrong about the ballot measure and that same-sex couples have no federal right to marriage, then advocates of those marriage rights will be forced to attack the issue state-by-state or mount an effort to get the Supreme Court to overturn the decision — an effort that likely would take years, if not a decade or more.
The opponents of Proposition 8, led by the American Foundation for Equal Rights and in court by former George W. Bush lawyer Ted Olson — also the stand-in for Vice President Biden in Wisconsin Rep. Paul Ryan’s debate preparations — will have a more difficult decision. They could argue that the broad trial-court ruling that same-sex couples have a right to marry under the U.S. Constitution is correct or that the more narrow Ninth Circuit ruling is correct. They likely would avoid making that decision, however, instead arguing that both are correct.
If the court doesn’t take the case, which should be known by early October unless the court holds the case without taking action, then marriages will resume between same-sex couples in the state in short order — following a technical order, called a mandate, to be issued by the Ninth Circuit. If the Supreme Court does take the case, then the case will go through another round of briefing and the justices will hear live arguments from the lawyers, where they can question the advocates’ positions, and then issue a decision.
Defense of Marriage Act: In the series of cases addressing whether the federal definition limiting “spouse” and “marriage” to marriages of one man and one woman — contained in Section 3 of the Defense of Marriage Act (DOMA) — the court has the choice of four different cases from which to choose to resolve the issue. The First Circuit Court of Appeals — in one of the challenges before the court — decided that Section 3 of DOMA is unconstitutional in a decision issued earlier this year, which makes it very likely that the Supreme Court will take at least one of the DOMA challenges to resolve the issue for the entire country.
The cases from which the court can choose include that appeal from the First Circuit, which actually is two cases that were heard together by the First Circuit: one brought by Gay & Lesbian Advocates & Defenders on behalf of Nancy Gill and other plaintiffs and the other brought by Massachusetts Attorney General Martha Coakley on behalf of the state; a case brought by Lambda Legal on behalf of Karen Golinski, a federal court employee denied the health insurance for her wife that she would have received had she a husband; a case brought by the American Civil Liberties Union on behalf of Edith Windsor, a widow who had to pay a hefty estate tax bill because her Canadian marriage to her wife was not recognized by the federal government; and another case brought by GLAD, this one in Connecticut on behalf of another group of plaintiffs and led by Joanne Pedersen.
The cases come to the court with the unusual posture of the defendant in the case — various people in and agencies of the federal government — agreeing with the people suing the government that the law in question is unconstitutional. This came about when Attorney General Eric Holder alerted House Speaker John Boehner in February 2011 that Holder and President Obama had concluded that Section 3 of DOMA was unconstitutional and that, accordingly, the Department of Justice would no longer be defending that part of DOMA in court. Holder stated that the administration would therefore make clear to courts that it wanted to provide “Congress a full and fair opportunity to participate in the litigation” against DOMA.
Because of this, in addition to the relatively routine issue for the justices of deciding which of the cases best presents the legal issue to be decided in a clear and uncluttered way, the case also presents the justices with the potential of resolving a second issue: whether Congressional leaders of one party, through a majority-vote process among the leadership in one chamber, have the constitutional standing to defend an act of Congress against constitutional attack when the executive fails to defend the law’s constitutionality itself. BLAG has asked for the court to accept its request to hear the Massachusetts/Gill cases on appeal; it has urged the court to reject all other requests.
The Obama administration argues, on the other hand, that the cases are validly presented to the court for appeal because the administration itself continues to enforce DOMA, regardless of its legal position in court. As such, the issue of whether the House Republican leaders can bring an appeal in the Massachusetts/Gill cases need not be resolved now, as the administration filed requests with the court — called petitions for a writ of certiorari — in all four cases. The federal government has said that it believes the Massachusetts/Gill cases or the Golinski case would be the best cases for the court to take. In addition, Massachusetts filed a request in its case, as did the ACLU in Windsor’s case and GLAD in the Pedersen case.
Of the DOMA cases, the court currently is slated to consider only the Windsor petition at its first conference, on Sept. 24. It is possible, however, that the placement of that case on the docket is so that it can decide whether it wants to take the case immediately to halt the Second Circuit’s scheduled oral arguments on the appeal in that case on Sept. 27. The other requests would be ready for the court to consider at a conference in the coming weeks after that, but the recent filings by the Obama administration in Windsor and Pedersen could delay the DOMA cases' consideration even further because the House Republican leaders now have 30 days to respond to those filings.
Assuming the court takes one of the DOMA cases, the parties will brief the court on the legal arguments, oral arguments will be scheduled for early next year and, then, a decision would come likely by late June 2013. A decision upholding DOMA would be a major blow to LGBT legal advocates, who have considered this course — as opposed to the broad ruling on marriage rights initially advocated for in the Proposition 8 challenge — the most likely route for successful expansion of same-sex couples' rights through the Supreme Court.
Other cases: Those aren't the only LGBT-related issues that the court will face when it returns next week. A separate case out of Arizona has raised the question whether a state can eliminate same-sex couples' government employee health benefits. The Ninth Circuit Court of Appeals agreed with the trial court in concluding that what Arizona did was unconstitutional, but Arizona is asking the Supreme Court to reverse that decision. Additionally, the National Organization for Marriage, one of the leading opponents of same-sex couples' marriage rights, is asking the court to reverse a lower-court ruling that applied Maine's campaign finance laws to the group.
Although the DOMA cases will not alter the ability of same-sex couples to marry in any states and although the Proposition 8 case, if the narrow ruling stays in place or is affirmed by the Supreme Court, is unlikely to change things immediately outside of California, both cases could help lay the legal groundwork setting up that possibility in the future.