Same-Sex Marriage in the Supreme Court, a Brief

For most Americans who filed joint taxes as a married couple in 1996, the Defense of Marriage Act (DOMA) was little more than a reiteration of what they already knew: that marriage happened between a man and a woman. For many others – who would turn out to be an increasing and vocal minority – it was a reminder that a line had been drawn in the sand between them and their heterosexual counterparts. Gay marriage, now formally known as same-sex marriage, would continue to be an “other,” relegated from simply non-legal to officially illegal. 

Along with four other cases challenging the constitutionality of DOMA’s section 3, US v. Windsor (formerly Windsor v. US) may soon be oft-studied in law schools ‘round the country. But before the law in question meets its fate in the Supreme Court this June, assuming that it fails to meet constitutional muster, one has to ask: what will happen afterwards should it get struck down? Indeed, even more complex does the tale grow as the SCOTUS has decided to hear both the aforementioned case in addition to the challenge to California’s ban on same-sex marriage, Prop 8, now known as Hollingsworth v. Perry. Presuming that the court in US will be persuaded by the defendant’s arguments along with the lower court opinions, they will then hear the Prop 8 case to decide how to implement the ruling.

Currently, same-sex marriage is legally recognized and performed in nine states and the District of Columbia. It is officially banned in thirty-one states. Originally, there was no formal definition of marriage in the constitution or federal law; only the effects of marriage were described in the form of tax withholdings and federal benefits. Even so, marriage has been a practice relied upon by the State to fight lawlessness, encourage fiscal and familial responsibility, and as an efficient means to distribute economic stimulus. For those reasons and many others has the practice become recognized as an institution on the federal level as on the state level.

What’s going to happen should DOMA get struck down?
The SCOTUS only needs US to strike down DOMA since the law’s section three is in such glaring disagreement with the 14^th amendment. Taking on Hollingsworth (all of whose lower court decisions – like US’s – were also in concurrence) strongly suggests that there will be a second movement in addressing the question of same-sex marriage legality. In striking down DOMA, whether the SCOTUS would immediately strike down state marriage bans as well remains the primary question at hand. In the meantime, post-DOMA, the federal government would defer to the states on the legality of same-sex marriage. Effectively, all persons married in states where same-sex marriage is legally recognized would automatically (possibly retroactively, though that is another discussion entirely) receive federal benefits etc.

So, again, what’s going to happen after US v. Windsor? After DOMA is struck down the court will hear Hollingsworth. In the 9^th U.S. circuit court of appeals, the ruling specified that once the right to marry had been extended to same-sex couples, it could not be taken away. In the majority opinion on a three-member court, Justice Reinhardt wrote that Prop 8 serves no purpose but “to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships.” In the text, Justice Reinhardt used the phrase “right to marry” which many in the sphere of marriage-equality advocacy have adopted as a slogan. Indeed, language itself will be at the heart of the matter when the SCOTUS hears arguments for Hollingsworth. In 1967’s Loving v. Virginia, Chief Justice Earl Warren reaffirmed the protections of the 14^th amendment specifically concerning the subject of marriage:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

One of the main questions up for debate will be whether Chief Justice Warren’s opinion in the decision from Loving can serve as a precedent for Hollingsworth and to what extent the court will be compelled to act. Even if the court’s decision parts according to multiple interpretations, many suspect that the 1967 opinion remains substantially relevant enough to sway Justice Kennedy, the known swing-vote, as one could easily replace each reference to race with gender or sexuality.

In today’s Supreme Court, a majority of cases have been decided unanimously since 2009 but some of the more controversial cases have resulted in 5-4 splits, outnumbering any other split (3-6, 2-7, etc.). With such a characteristic, many have­ portrayed the court as “divided along ideological lines.” As it concerns Hollingsworth v. Perry, the likelihood of a split appears higher than that of unanimity. In 2008’s Kennedy v. Louisiana, the court in a 5-4 decision overruled the capital punishment of a man convicted of raping his daughter. In the minority opinion, Justice Alito implicitly voiced support for the state to regulate morality, as he writes, “…is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist?” Justices Thomas, Roberts, and Scalia joined him in the dissent. The greater part of the Supreme Court’s audience have kept their eyes fixed on Justice Kennedy, however. In 2003’s Lawrence v. Texas, the court set new precedent in overturning Bowers v. Hardwick, a 1986 Supreme Court decision upholding a Georgia statute that criminalized “homosexual sodomy.” Justice Kennedy wrote in that decision,

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward… The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

    This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons… The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Will Justice Kennedy frame the issue as one of individual liberty as he did in Lawrence and as Chief Justice Warren did in Loving? Or will he decide in favor of the democratic process that enacted such marriage-bans? Some on the conservative side of the political spectrum have pointed to his assent to the majority opinion in the 2000 case, Boy Scouts of America et al. v. Dale in which Chief Justice Rehnquist wrote “public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message.” The significance of Justice Kennedy’s opinion, however, may be misunderstood by those who use it to predict Hollingsworth; Boy Scouts of America was and is a private organization whereas marriage as an institution is certified by public office and is therefore scrutinized more by anti-discrimination laws than it is protected by freedom of speech laws.

If Prop 8 gets struck down in the Supreme Court by the reasoning of Loving then the decision is all but assured to invalidate same-sex marriage bans throughout the country mirroring the outcome of the 1967 decision.

A Loving-inspired rationalization for Hollingsworth has been cited widely by civil-rights groups such as Human Rights Campaign, the NAACP, the Cato Institute, the ACLU, as well as by President Obama himself whose administration recently filed a brief in support of overturning Prop 8. With a majority of Americans in favor of same-sex marriage according to an ABC News poll, even prominent republicans have filed a brief echoing the “right to marry” phrase.

“The times they are ‘a-changin.”