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

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

The U.S. Supreme Court announced Friday that it would hear arguments on two key gay marriage cases — California's Proposition 8 and the federal Defense of Marriage Act, or DOMA.

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The U.S. Supreme Court announced Friday that it would hear arguments on two key gay marriage cases — California's Proposition 8 and the federal Defense of Marriage Act, or DOMA. But it is not yet certain the court will actually decide the cases. It left itself some significant wiggle room on Friday.

The first case, Windsor v. United States challenges a plank in the Defense of Marriage Act that defines marriage as between a man and a woman for the purposes of federal law.

The plaintiff is a woman who had to pay $363,000 in federal estate taxes in order to inherit property after her wife's death because the federal government would not recognize her otherwise valid state marriage.

In the second case, Hollingsworth v. Perry, the Court will review California's Prop 8, which amended the state constitution to define marriage as between a man and a woman, after the state supreme court had ruled otherwise.

In both cases, the courts asked for arguments focused on "standing." As a Deseret News editorial noted last January, "Before a federal court can speak authoritatively on an issue it must have a live dispute before it and it must ensure that the appropriate litigants are arguing the issue before the court. The legal doctrines of 'standing' determine whether a party is an appropriate litigant."

Standing is key in both cases for the same reason. In both, executive branch officials who would normally defend the law declined to do so, and outside parties stepped in. The court must now decide if a legal arm of the U.S. House of Representatives can properly defend DOMA, and whether an activist group led by a former California state assemblyman can properly represent Prop 8.

If the Court gets past these standing barriers and gets to the issues, it could move to again upend social policy, much as it did in 1954 with school desegregation and in 1972 with abortion.

But the desegregation and abortion decisions played out quite differently in the public mind, said Nathan Oman, a law professor at Virginia's College of William and Mary. With desegregation, consensus quickly hardened behind the Court. But on abortion, the Court's decision divides the electorate and haunts the judiciary to this day. The difference, Oman said, hinges on whether political consensus emerges to support the court's direction.

Oman said that while most people looking back credit Brown v. Board of education with ending segregation, the decision actually "had almost no practical impact at all for many, many years." He compared it to a rooster crowing at dawn taking credit for the sunrise.

The 1972 abortion decision of Roe v. Wade, on the other hand, is a daunting proposition for the court, said Lynn Wardle, a BYU law professor and opponent of same-sex marriage. "I do not think the Supreme Court will try to pull a Roe v. Wade," Wardle said, by which he means trying to "settle this whole thing all at once, and expect the result to be peace, harmony and love."

"In other countries where the political process was allowed to function," Wardle said, "it may have taken 10-15 years, but they have reached a degree of consensus on abortion, and they have much more moderate rules and laws on it." In contrast, Wardle said, "the United States stands on the far extreme on abortion."

"Both Brown v. Board and Roe v. Wade show the relative impotence of the Supreme Court," Oman said, "but that doesn't mean the court always creates a mess when it intervenes."

"I think the court generates legitimacy for a set of rights when that bundle of rights already has social legitimacy." In other words, Oman suggested, the court may benefit from delaying an emphatic decision on marriage, such as declaring a fundamental right to gay marriage, until after political consensus firms up.

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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