Analysis

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider — but not necessarily to decide — some of the most important constitutional issues at the heart of that national controversy. Each side gained the opportunity to make sweeping arguments, for or against such marriages. But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so.

The rather wordy pair of orders the Justices issued at 3:13 p.m. Friday accepted for review core questions on the power of states and of Congress to pass laws that either forbid, or discourage, same-sex marriage, when such laws are passed either to express disapproval of homosexuality or to try to protect the traditional view that marriage should be open only to a man and a woman. But, on both of the granted cases, the Court told the lawyers to be prepared to argue points that could keep the Court from reaching those constitutional questions.

The Court had ten petitions on the constitutional issue (a pending eleventh one is likely not ready for the Justices to react), and the Friday orders mentioned only two. One is on the constitutionality of California’s “Proposition 8,” a ballot measure approved by the state’s voters in 2008 to take away a marital right that the state supreme court had recognized for same-sex couples — a case taken to the Court by the proponents of that measure (Hollingsworth v. Perry, docket 12-144).

The other is on the constitutionality of the part of the 1996 federal Defense of Marriage Act providing that the word “marriage” in any federal law or regulation — including hundreds that provide benefits — means only a union of a man and a woman (United States v. Windsor, 12-307). That case was initially taken to the Court by the Obama administration’s Justice Department.

But besides accepting for review the questions raised in those two petitions, going to some of the fundamental constitutional disputes over marriage laws, the Court — somewhat at the prompting of some of the parties — added questions to each case about its authority to rule. The added questions themselves are constitutional in nature: they arise under Article III, and its grant of power to the federal courts. But that is a power to decide only a “live” case or controversy, and that means there have to be two sides with the legal right to be in court before Article III can be satisfied.

In the California Proposition 8 case, the Court told lawyers to argue whether the proponents of the amendment to the state constitution had “standing” under Article III. “Standing” simply means the right to be in court. There are very specific qualifications that must be met in order to have “standing.” In striking down “Proposition 8,” the Ninth Circuit Court had ruled that the proponents of a ballot measure have a specific interest in defending it, and that is enough to justify their being in court. Without that finding, the Circuit Court would have had no authority to rule on the measure’s validity.

So, when briefs are filed in that case, and when oral arguments are held (both new cases are likely to be set for hearings in March), lawyers on both sides will have to debate the Article III question, along with the merits of the constitutionality of the marriage amendment. The merits argument, if the Court does get to it, is whether the Constitution’s Equal Protection Clause bars California from granting homosexual couples a right to marry and then withdrawing that right, or more fundamentally from defining marriage as the union of a man and a woman. If the Court were to rule that the Constitution does not impose a bar to California’s actions, that would mean that states were free to maintain traditional marriage restrictions — provided that they did not discriminate on the basis of a forbidden category of citizens.

In the meantime, same-sex couples in California will not be able to marry, since the Ninth Circuit decision striking down the ballot measure is on hold “until final disposition by the Supreme Court.”

In the DOMA case, the Court told lawyers to argue whether either the Obama Administration (that is, the Executive Branch) or the House of Representatives’ Republican leaders were legally before the Court. For the Executive Branch, the Court said, it wanted to consider arguments that the fact that the Administration got what it wanted on DOMA’s Section 3 — it wanted the statute struck down — meant that the Supreme Court simply has no authority “to decide this case.” The Administration last year stopped defending the constitutionality of that provision, and argued that the restriction was unconstitutional. The House’s GOP leaders then took up the defense of DOMA in court. In the Court’s new order, it asked whether the GOP lawmakers have “Article III standing.”

The merits argument in the DOMA case — and that, too, was something the Court agreed to consider — is whether Section 3 of that statute violates the right to legal equality for same-sex couples who are legally married under state laws where they live. If the Court were to rule that the Court lacks jurisdiction, after finding that the Administration is not a proper one to appeal a ruling that it had won, that presumably would end that case. If it were to rule that the House GOP could not be in the case, there would be no defender of DOMA.

But there is still a private individual involved in that case — Mrs. Edith Windsor of New York City, who had to pay a federal tax on the estate she inherited from her same-sex spouse after the spouse’s death, because DOMA allows that only for the surviving spouse of a man-woman marriage. Incidentally, there is a dispute about even Mrs. Windsor’s own “standing,” but the Court did not mention that in its order in that case. Mrs.Windsor has her own petition at the Court, but it did not figure directly in the Friday orders.

The Court is probably going to hear the two cases in back-to-back oral arguments, and may allow more than the usual one hour per case. It could, of course, issue a further order, addressing the alignment of parties in the granted cases, and lining up the appearances of the lawyers for the points being argued.

If the Court does not rule on the marriage rights issue itself in either of the granted cases, and that is all that is concludes on the issue this Term, the question would arise whether it might take on some of the other pending cases, so as to reach the more fundamental constitutional dispute. That, however, might come too late for a decision this Term, with a likely recess in late June.

The “Proposition 8” case from California has been the same-sex marriage case with the highest visibility, and the Court’s willingness to consider that case signaled at least a tentative desire to approach the broad constitutional question of state power to limit marriage. But if it should turn out that the Court does not allow the proponents of the measure to defend it, that would wipe out the Ninth Circuit’s ruling striking down the change in the state constitution. The apparent effect of that would be to reinstate the broader ruling against “Proposition 8” announced two years ago by a now-retired federal district judge in San Francisco, Vaughn R. Walker. But Walker’s decision might not apply statewide in California, because it might be binding only on the limited array of parties involved in that case.

The challengers of “Proposition 8”– represented by the celebrated legal gladiators twelve years ago in Bush v. Gore (Theodore B. Olson and David Boies) — have argued that Judge Walker’s ruling also imposes obligations on state officials not to enforce the ballot measure, but the proponents have disputed that argument.

One key issue the Court will be confronting on whether the proponents do have “standing” is how to apply a decision the Court issued in 1997, in Arizonans for Official English v. Arizona, expressing “grave doubts” that ballot measure proponents had a right to pursue an appeal to defend the measure when a state declined to do so. The Court said there that proponents had to show they had a “direct stake” in the controversy in order to appeal. The same-sex couples who oppose “Proposition 8” have argued in lower courts that the Arizona precedent should control the issue of appeal rights in their case.

Recommended Citation: Lyle Denniston, On same-sex marriage, options open, SCOTUSblog (Dec. 7, 2012, 5:47 PM), https://www.scotusblog.com/2012/12/on-same-sex-marriage-options-open/