News analysis: Supreme Court leaves itself some 'wiggle room' for gay marriage cases

Published: Friday, Dec. 7 2012 10:37 p.m. MST

The 9th Circuit in its Prop 8 decision avoided declaring a fundamental right, said William Duncan, director of the Utah-based Marriage Law Foundation. Instead, the 9th Circuit used a complex formulation based on voters' motives.

That complex formula is unlikely to prevail at the Supreme Court, Duncan said. If the court does embrace the lower court's ruling, Duncan fears it would leave state laws all over the country in continuing legal limbo. "The holding is implausible enough that it would be unlikely the court would buy that reasoning."

One escape hatch, should the court choose to avoid granting the sweeping right and allow the political process to function, while still injecting some clarity into the confusion, would be to split the difference.

"DOMA is sort of appealing if you are looking for a political compromise," Wardle said. "You say, let's strike down DOMA and let's uphold Proposition 8." This, he argued, would bar Congress from defining marriage and "make them accept what the states have defined."

Wardle said that because family law is historically the domain of states, the court could decide to support state authority. The federal government would have to take at face value anything the states gave them.

"Court watchers I've corresponded with believe that the likeliest outcome," wrote Marc Armbiner at The Week, "given the justices' individual histories on similar questions, would be a decision that strikes down the federal recognition prong of DOMA while also ruling there is no constitutional right to get married. This result would mean that married gay couples would be eligible for federal benefits but that gays could only get married in states where such unions were legal."

"In theory," Armbinder wrote, "a gay couple would be able to marry in a state that allowed gay marriage and then return to their home state, receiving federal benefits but no state recognition."

Should it go this direction, Wardle agreed, the federal government may eventually be forced to shed marriage-related policies in favor of neutral, partnership-based language to smooth over differences between states.

Still, such a split decision remains a strong possibility.

"This will be in the news again for the next several months," said Wardle, who expects the cases to be argued in April and decided in July.

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