[See Part I of Preview here.]
It’s obvious by now that the arguments this coming Tuesday and Wednesday morning in the two marriage equality cases — on the Defense of Marriage Act (Tues.) and Prop 8 (Wed.) — have cosmic significance. We feel, with some justification, that this is our moment. And even disappointing decisions by the Justices aren’t likely to quell our rising optimism. The fight for marriage equality will soon be over, one way or another. With over 80% of those under 30 years of age registering their support for same-sex unions, even Brian Brown must know, in his heart of hearts, that it’s all over.
Yet the Court’s decision is still monumentally important. I’ll be speaking on the issues tomorrow evening at Ursinus College (if you’re in the Philly area, come by), and will be part of a Google Hangout “post-mortem” hosted by the Washington Post on Wednesday at 2 pm. So important that the Court is going to do what it rarely does: release the audio of the oral argument each day shortly after the conclusion. (You should be able to find the files here.) There are so many excellent previews and issue summaries, from so many different perspectives, that I won’t attempt to summarize them here. A few of the recommended ones: the “deep dive” from the Oyez Project (especially for those who like video learning); SCOTUS Blog’s Lyle Denniston; and this one from the New York Times (with a great sidebar flow chart of possible outcomes) There are many, many others.
So I just want to draw your attention to two things here.
The first thing to listen for is how the Court is thinking about laws that discriminate on the basis of sexual orientation. Here, I’m not talking about the Justices’ views on such laws (we already know a lot about that, especially where Justice Scalia is concerned), but about the legal standard against which such laws will be judged. In most cases, laws will be upheld if they are supported by a rational basis. As you might guess, that’s a very easy standard to satisfy. But if a law infringes a fundamental right — such as free speech or religion, for example — or targets a so-called suspect class, then the law must be justified by a compelling reason. Laws judged against that higher standard are usually struck down.
Until now, The Supremes have dodged the question whether laws that discriminate on the basis of sexual orientation are entitled to this stricter sort of review. They’ve been able to strike down laws against the LGBT community by finding that they don’t even have a rational basis. (For a fuller discussion of one of these cases, Romer v. Evans, read this post.) But in the DOMA case (United States v. Windsor), the federal appellate court expressly applied the higher standard, finding that gays and lesbians should be considered a suspect class, and that DOMA couldn’t stand against this level of scrutiny. To enter the realm of the suspect class, the group must satisfy the Court that it has been historically subjected to discrimination, that it lacks the political power to effect change, that the characteristic that defines the class is either immutable or a fundamental part of identity, and that the characteristic that forms the basis of the classification bears no relationship to the group’s ability to function in society.
The appellate court’s answers to these questions were: yes, yes, yes, and and yes. But listen closely to try to get a sense of what the Supreme Court thinks. (It’s also true that the right to marry is fundamental, but the Court didn’t ask for briefing on that issue.) If the Court finds that a heightened scrutiny should apply, then it will apply to both cases, and the prospects for victory would jump dramatically.
The second area of interest is in the possible remedy if the Court thinks that Prop 8 was an unconstitutionally discriminatory exercise of power. (The remedy if the Court thinks DOMA is unconstitutional is clear: Section 3 of that Act, which defines marriage as limited to a man and a woman for federal purposes, will be gone.) Of course, the “home run” we’d all like would be for the Court to declare Prop 8 and all laws that fence same-sex couples out of full marriage equality are unconstitutional. But that’s unlikely, not least because the all-important Anthony Kennedy was recently heard to murmur that the SCOTUS Justices should prefer the democratic process over their own undemocratic intervention. (Never mind his votes on Obamacare, Citizens United, Bush v. Gore….) So what else might the order order on Prop 8?
It might follow the invitation of the federal appellate court (for the Ninth Circuit), and find that the circumstances of Prop 8 were unique. If so, we’d have a California-only solution. The way to get there is this: When the voters passed Prop 8, they took away a fundamental right of same-sex couples to marry (as found by the California Supreme Court). And what was left in its place was a comprehensive domestic partnership law that provides all the same rights, benefits and obligations of marriage — just without the name. And then, this line of thinking goes, the only reason to take away the name “marriage” is to stigmatize gays and lesbians. And that, California can’t do.
An à la mode version of this possibility is for the Court to declare unconstitutional all civil union and full domestic partnership laws: the so-called “eight-state solution,” because it would apply to: Rhode Island, New Jersey, Nevada, Illinois, Delaware, Hawaii, and Oregon as well as to California. (Well, as of Thursday it’s now the nine-state solution, as Colorado just passed a civil unions bill. It really is impossible to keep up in this area of the law.) Again, the idea would be that there’s no reason to allow full rights but withhold the name. This solution is paradoxical, because it seems to find more discrimination in states that have actually advanced fairly far along the spectrum of “no relationships, period” to full marriage equality. So I don’t expect the Justices to buy it.
Hold onto your hats.
John Culhane is the co-author of the new book, Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.
We invite you to sign up for our new mailing list, and subscribe to The New Civil Rights Movement via email or RSS.