Hello, readers—let’s cut to the chase. Last week, on March 26 and 27, the Supreme Court heard two cases relating to same-sex marriage: Hollingsworth v. Perry and United States v. Windsor. Hollingsworth asks whether the Fourteenth Amendment’s Equal Protection Clause prohibits California from defining marriage as a union between a man and a woman under their Proposition 8, and also whether the petitioners even have standing (under Article III, § 2 of the Constitution http://www.law.cornell.edu/constitution/articleiii) to bring the case to the Supreme Court. Windsor, on the other hand, asks whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s equal protection clause, whether the Executive Branch’s stance that DOMA is unconstitutional deprives the Supreme Court of jurisdiction in the case, and whether the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives has standing under Article III in the case.
Both of the cases are extremely important for the legality of same-sex marriage in the United States, and the response to the cases indicates that there is still a clear divide in this country between the anti-gay-marriage and pro-gay-marriage movements, often boiling down to a “morality versus equality” baseline. As a resident of the DC Metropolitan Area, local coverage of the cases began on Saturday evening as people had already lined up outside the Court, anxious to get a seat for Tuesday’s hearing. The protests that occurred on Tuesday the 26th and Wednesday the 27th were lively, though civil on both sides—there were no violent outbursts or direct conflicts between the two sides. On Facebook, people changed their profile pictures to red equality signs in support of same-sex marriage and posted strongly worded statuses denouncing the concept. I’ve written before about the impact that Hollingsworth and Windsor are bound to have on the United States regardless of the outcome, but it’s worth re-stating. Same-sex marriage is arguably our country’s largest, most prominent “social issue,” and these cases have brought it to the forefront more than ever before. These decisions will permanently affect the way the United States approaches same-sex marriage, and will be “controversial,” no matter how the chips fall, due to their subject matter.
But let’s not get ahead of ourselves—the Court has to make its decisions first. And based on Tuesday and Wednesday’s arguments, it may be a Herculean task. Before I launch into a recap, it might be useful to get a sense of the oral arguments: for a full written and audio transcript of Windsor, see here, and for a full audio transcript of Hollingsworth, see here. For more coverage of the cases or speculation on the potential outcomes, peruse SCOTUSblog’s thoroughly compiled list and read to your heart’s content. I’ll do my best to keep you up to speed, but it’s always good to get more than one opinion, and the writers of these articles are all constitutional or political scholars that I hold in high regard. Moving back to the cases themselves, though…
I could be very wrong about this, so feel free to criticize me when the decisions are released and my predictions roundly debunked, but I think that there’s a strong chance the Court will rule in favor of same-sex marriage, if they can get past the issue of standing. In Tuesday’s Prop. 8 Case (Hollingsworth), much of the argument focused on whether petitioners even had standing to bring the case. “I wonder if the case was properly granted,” Justice Kennedy said, and Justice Sotomayor seemed to agree, saying, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” (Quotes from NYTimes coverage.) Standing was again raised during Wednesday’s DOMA hearing (Windsor). Several Justices criticized President Obama, albeit circuitously, for putting the Supreme Court in an unusual position by proclaiming that he disagreed with the law, that defines marriage as between a man and a woman, but would continue to enforce it. Chief Justice Roberts seemed frustrated with Obama and the circumstances behind the case, stating, “I don’t see why he doesn’t have the courage of his convictions,” and “You’re asking us to do something that’s never been done before,” namely, decide a case where both sides are in agreement. (Again, quotes from NYTimes coverage.) Wait, what? Yes—in Windsor, both the United States and Edith Windsor are arguing in favor of same-sex marriage, because the official position of the Department of Justice is that DOMA is unconstitutional but it continues to be enforced. This problem of standing certainly seems like the “elephant in the courtroom;” it may prevent the Supreme Court from reaching an opinion on same-sex marriage for either case if the justices decide that there’s no Article III standing.
In Hollingsworth, though, dismissal on the grounds of standing might not be so bad for proponents of same-sex marriage. The Ninth Circuit Court struck down Prop. 8 back in 2010 (in Hollingsworth v. Perry’s earlier stages), so if the case is remanded based on a standing issue, Proposition 8 is effectively dead in California. An actual Supreme Court decision might be more harmful than a simple remanding because the justices were so divided on the issue of Equal Protection that it is not clear how the majority would rule. It might be a very narrow opinion that benefits California but cannot be applied to other states.
In Windsor, during the Equal Protection argument, Justice Ginsburg said that DOMA created “two kinds of marriage: the full marriage, and then this sort of [sic] skim milk marriage.” For many supporters of same-sex marriages, and, as it seems, some of the liberal justices, DOMA is a clear violation of the Fourteenth Amendment’s Equal Protection Clause and the concept of Fifth Amendment Equal Protection, related to the Fifth Amendment’s Due Process Clause. The issue of federalism was also of concern to the Justices. This concept that DOMA violates federalism—separation between the federal government and state governments—is an important one, and may in fact help defeat DOMA. Justice Kennedy asked Solicitor General David Verilli, “You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?” Justice Alito wondered, during Paul Clement’s argument to uphold DOMA, if “Congress could have achieved exactly what it achieved under Section 3 [of DOMA] by excising the term “married” from the United States Code and replacing it with something more neutral.” (Quotes from the transcript.) The conservative justices were concerned with federalism, and the liberal ones Equal Protection, so the Court might actually strike down DOMA based on very narrow constraints stemming from both arguments.
There are so many sides to these two cases, but in the end we must wait to see how the Court decides to resolve these issues. . However, it seems that, based on the oral arguments, supporters of same-sex marriage will be in luck. Don’t agree with me? Go listen to the arguments yourself, and see what you get out of them. If nothing else, it’s a worthwhile way to spend a few hours, and the justices are pretty snarky people. Or read the commentaries that I linked to above, and fill your head with a variety of opinions. Based on the justices’ comments during oral arguments, it seems that you’ll emulate the atmosphere of the Court—and the country at large—by approaching the issue from as many angles as possible.