The U.S. Supreme Court heard two major same-sex marriage cases this week. They'll decide on both this summer. While we wait for the ruling, we're left to speculate on the import and outcome of this historic week.
The first case before the court — Hollingsworth v. Perry — challenges California’s Proposition 8 and the constitutionality of state laws restricting access to marriage for same-sex couples. Since Washington already allows same-sex couples to marry, the outcome of this case won’t have a direct effect here.
Depending on the ruling, Perry could potentially require other states to permit same-sex marriage, and to recognize the marriages of Washington same-sex couples, something they are not currently required to do. But after Tuesday’s argument this outcome seems fairly unlikely.
The second case — United States v. Windsor — promises a much more direct impact on Washington couples, and also seems much more likely to succeed. Windsor challenges the federal Defense of Marriage Act (DOMA). If the Court strikes down DOMA, the federal government has to recognize same-sex marriages, something that doesn’t happen now.
Federal recognition of Washington marriages would have a wide array of consequences, some relevant to all couples and some relevant only to some. For example, married same-sex couples would file their taxes as married couples next year and be subject to different tax tables; as a result, some people’s taxes will go up while others go down. Perhaps more importantly, same-sex spouses will be eligible for social security survivor and veterans’ benefits. And citizen spouses should be able to sponsor non-citizen spouses and keep their relationships intact.
So what happened in court this week? It’s hard to read tea leaves, of course, and there are no guarantees. On Tuesday it looked like the four more liberal justices (Ruth Bader Ginsberg, Sonia Sotomajor, Stephen Breyer and Elena Kagan) were playing defense — exploring reasons why Perry might not be properly before the court. In other words, why the Court shouldn’t decide the merits of the case. The four conservative justices (Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts), by contrast, eagerly offered up reasons why it made perfect sense to offer marriage to straight couples only.
Sitting in the middle was the only moderately-conservative Justice Anthony Kennedy, generally seen as the pivotal vote in both cases. On Tuesday, it seemed pretty clear that Justice Kennedy wanted to avoid the question before the court. While he expressed genuine concern for the 40,000 children of lesbian and gay couples in California (“The voice of those children is important, don’t you think?”) he was also wary of moving too quickly. (“We have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more [about different-sex marriage].”)
Given the dynamics of the current court, it seems unlikely that the court will produce a broad opinion, one that establishes a general constitutional right of same-sex couples to marry. Even a limited decision in which the court strikes down Proposition 8 without sweeping language may be beyond reach. Instead, it seems quite possible that the justices will find a way to send the case back to the lower court for rethinking. (And of course, while that’s happening, California voters just might repeal Proposition 8, ending the need for judicial action in this case.)
By contrast, the demise of DOMA’s Section 3 (the part before the court) seems much more likely. On Wednesday morning, during oral arguments on DOMA, it was the conservatives turn to play defense, as the four least-sympathetic justices earnestly tried to establish that the Windsor case did not belong before the court.
Their reasoning became clear as the argument turned to the merits of the case. Justice Kennedy was not nearly so hesitant about intervening here. In a series of questions he made it fairly clear that he is troubled by the idea of the federal government imposing its own (restrictive) definition of marriage. He spoke of the historic deference to the state in matters concerning marriage and the rights of children. At the same time, the four more liberal justices persistently pressed DOMA’s defenders to justify the law’s discrimination against same-sex couples.
Five justices seem to be leaning toward striking down DOMA. But it’s important to note that Justice Kennedy wasn’t particularly interested in the arguments about discrimination against lesbian and gay people. It’s not hard to imagine him writing an opinion that invalidated DOMA without mentioning lesbian and gay rights, basing the opinion instead on the proper balance between state and federal authority.
That narrow reading would still be a victory for lesbian and gay couples. Their marriages would be recognized under federal law. But such a circumscribed opinion will have far less impact than one grounded in the rejection of discrimination. (The latter outcome may be precisely what Justice Kennedy wants to avoid.)
For all the build-up, it isn’t clear that this week’s arguments will lead to a definitive victory or defeat for lesbian and gay rights or marriage. But that doesn’t diminish these incredibly important and dramatic moments.
One exchange in particular highlighted just how much the perspective on these issues has shifted. In the Perry argument, Justice Sotomayor asked Charles Cooper, who was representing Proposition 8’s proponents, whether, outside of marriage, he could think of any other rational reason for a state to use sexual orientation as a reason to deny benefits or impose burdens.
“Your Honor,” said Cooper, “I cannot. I do not have any — anything to offer you in that regard.”