Slowly But Surely Same Sex Marriage Headed to Supreme Court

Two years ago, I predicted that the legal controversy in California over Proposition 8 (which banned gay marriage in the state) would eventually make its way to the Supreme Court, which would lead the Court to hold that there is a constitutional right to same-sex marriage.

Dr. King said, “The arc of history is long, but it bends toward justice.” Well, the road to the Supreme Court is long too, but the issue of gay marriage is making steady progress down that road.

The Supreme Court will likely consider at least one, and possibly two cases that deal with gay marriage in its next term (Supreme Court terms run from the start of August through the end of June). One case is the Proposition 8 case decided by the Ninth Circuit, the other came through the First Circuit and deals with the Defense of Marriage Act.

It appears especially likely that the Proposition 8 case will go to the Supreme Court. In February, the Ninth Circuit issued a quirky opinion, holding Proposition 8 unconstitutional, but declining to hold that there is a fundamental right to gay marriage in the constitution. (My full analysis of that opinion can be found here.) The Ninth Circuit just recently declined to hear the case en banc. The defenders of Proposition 8 now only have one option: an appeal to the US Supreme Court.

The other case came through the First Circuit. That case was a challenge to DOMA. The First Circuit held that Section III of DOMA, which denies any federal benefits to a same-sex couple, even if the couple was legally married under state law, was unconstitutional. The court used a line of reasoning similar to that used by the Ninth Circuit. The court did not say whether there is a constitutional right to gay marriage (it didn’t decide that issue either way). Instead, the court held that the government cannot favor one type of married couple over another for essentially arbitrary reasons. In other words, if a state recognizes gay marriage, the federal government must extend marital benefits to those married couples (failing to do so would amount to discrimination).

So, what would happen if these cases go to the Supreme Court?  That is anyone’s guess. The first decision that the Court would have to make is whether to address the issue of whether there is a fundamental right to gay marriage protected by the Constitution. The Court could decide that issue because if the answer is in the affirmative, then all of the more minor arguments are moot.

As I have written in the past, I think there are four justices on the Court who want to hold that there is a fundamental right to same-sex marriage protected by the Constitution and four justices who want to hold that there is no such fundamental right. The swing vote, as usual, is Justice Kennedy. Although Kennedy is difficult to read, my best guess is that he does not want to decide the issue at all, but if forced to do so, he would agree with the liberals that the Constitution does protect the right of same-sex couples to marry.

So, if either of the pending cases go to the Supreme Court next term, the Court would most likely decline to decide the fundamental constitutional right question. Instead, the Court would likely affirm the narrower decisions of the lower courts, meaning that gay marriage would become legal in California and the federal government could not deprive married gay couples of rights in states that allow gay marriage. However, gay marriage would remain banned in the majority of states.

In other words, incrementalism remains the most reasonable expectation for GLBTQ activists.

It is worth remembering that public opinion is steadily swinging in favor of gay marriage:

But pro-choice activists saw a similarly favorable trend prior to Roe v. Wade. The affect of the Supreme Court’s intervention was to halt that trend in its tracks. Although it may seem paradoxical, it might be advantageous in the long run for GLBTQ advocates if the Supreme Court puts the big decision off for a few more years.