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to Section One | to Arts & Entertainment
posted Friday, March 29, 2013 - Volume 41 Issue 13
What will the Supreme Court do now?
Section One
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What will the Supreme Court do now?

How the justices could rule, and what it will mean for our community

by Mike Andrew - SGN Staff Writer

On March 26, the Supreme Court heard arguments in Hollingsworth v. Perry, the Prop 8 case, and the next day in U.S.A. v. Windsor, which takes up the constitutionality of DOMA.

While observers are carefully parsing every word of the justices questions and comments for clues to how they might rule, there are actually only a few logical possibilities.

Prop 8 is a much trickier case for the court, because it invites the justices to make a very broad statement about LGBT rights - exactly the kind of statement an ideologically divided Supreme Court may be unable to make.

THE PROP 8 DILEMMA
U.S. District Judge Vaughan Walkers original decision striking down Prop 8 was based on the Equal Protection Clause and the Due Process Clause of the Constitution, and it suggested that Gay and Lesbian couples have an affirmative right to marry, since that right is afforded to opposite-sex couples and there is no rational basis for excluding same-sex couples from marriage.

The Supreme Court, therefore, cannot endorse Walkers reasoning without finding a constitutional right to same-sex marriage - thus voiding existing laws in more than 40 states prohibiting Gays and Lesbians from marrying.

On the other hand, the Ninth Circuit upheld Walkers result, striking down Prop 8, but substantially rewrote his reasoning so that it applied only to the unique circumstances of California: same-sex couples were first given the right to marry, then that right was taken away from them - and only from them, not from opposite-sex couples as well.

But, as Justice Kennedy pointed out at the hearing, if the court endorses the Ninth Circuits reasoning, they would be saying that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn't go far enough [by disallowing marriage], and it's being penalized for not going far enough.

In other words, by upholding the Ninth Circuit the court would, in effect, be saying to states, Give same-sex couples marriage, or give them no rights whatsoever, a ruling that would be a setback for the LGBT community.

JUSTICE FOR SOME?
The same criticism could also be applied to the so-called nine-state solution advocated by the Obama Administration. The nine states that currently allow same-sex domestic partnerships or civil unions without including same-sex couples within the actual definition of marriage, the argument goes, place a stamp of inferiority on them, and therefore should be required to allow them to marry.

This obviously leads to the same conclusion as the California-only argument put forward by the Ninth Circuit - some states would conclude that it is better to deny Gay and Lesbian couples all rights, than to be forced to allow them to marry.

Justice Kennedy also asked if the prohibition on same-sex marriage could be treated as a gender-based classification, adding, It's a difficult question that I've been trying to wrestle with.

This is an interesting question because it revives an issue from Judge Walkers opinion that was not included in the Ninth Circuit's ruling: namely, that the exclusion of Gays and Lesbians from the institution of marriage imposes a kind of sex-based discrimination by prohibiting men from doing something that women are allowed to do - marrying a man - and likewise prohibiting women from doing something that men are allowed to do - marrying a woman.

If Kennedy is serious about this line of questioning, it may introduce justification for heightened scrutiny over marriage laws, since that level of judicial scrutiny is already considered appropriate for discrimination based on sex or gender.

This line of reasoning does not explicitly say that Gays and Lesbians are targeted for discrimination because of their sexual orientation, and therefore it could not be used to support heightened scrutiny in housing or employment cases, for example. Nevertheless, it would constitute a broad affirmation of their right to marry, backed up by judicial oversight.

THE ISSUE OF STANDING
If the justices are unwilling or unable to reach the conclusion that same-sex couples have an affirmative right to marriage, however, they could dismiss the case on procedural grounds, and this is the reason for reviewing the standing issue.

The governor and attorney general of California, who would normally defend their law in court have declined to do so because they too believe Prop 8 is unconstitutional. If the court finds that the supporters of Prop 8 do not have standing to appear before the court, they can dismiss the case.

If they did that, the Ninth Circuits decision would also be voided, since it ruled that Prop 8 supporters did in fact have standing. But the original district court decision striking down Prop 8 would stand. The justices could also dismiss the case as improvidently granted, meaning they have changed their minds about hearing it, without even reaching the standing issue. In that instance, the Ninth Circuit decision would govern.

While the Prop 8 case technically affects only the immediate plaintiffs - one Gay and one Lesbian couple - and the state of California could conceivably require other same-sex couples also to sue for marriage licenses, the state is much more likely to begin granting licenses to all such couples, which is the result state officials wanted to begin with. DOMA AND STATES RIGHTS
The DOMA case is more straightforward because it can be decided without even addressing the issue of LGBT rights. In fact, several justices addressed the states rights issue and suggested that DOMA was an unconstitutional intrusion by the federal government in an area that would normally be regulated by state law - who has the right to marry whom.

While some justices, notably Ginsberg and Kagan, seem to be tending more toward a decision based on the Equal Protection Clause, which would lead to a broader affirmation of Gay rights, Justice Kennedy has based past opinions on the states rights issue.

If the Justices decide that DOMA is unconstitutional on this basis, then federal agencies like the IRS would have to treat legally married same-sex couples exactly they way they treat opposite-sex spouses, but, since the definition of marriage would be left to the states, Gay and Lesbian couples in states that do not currently permit same-sex marriage would still not gain a right to marry.

UNRESOLVED QUESTIONS
While this seems to be the direction the court is heading, it does not settle all the possible questions of federal law. What happens, for example, if a same-sex couple is married in New York and then retires to Florida? Opposite-sex couples do that all the time, and their marriages are recognized in their new places of residence, but would that be the case for same-sex marriages?

And if not, could such couples bring suit for recognition under the Full Faith and Credit Clause, which requires states to recognize legal acts performed by other states? And would federal agencies take their cue from state law in the place the couple was originally married, or in the place where they eventually reside?

Clearly, this direction would open the Supreme Court to additional suits in the coming years, with plaintiffs asking them to clarify their reasoning, and maybe what the court really wants is just to stall for time while it sorts out the underlying constitutional issues.

It could be that a majority of the court will agree that DOMA is unconstitutional, but will be unable to agree on why. That might mean that the justices will write several concurring opinions rather than one which speaks for the majority - an outcome that would almost certainly lead to further litigation on the marriage issue.

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