Some people could say, 'This is the way the trend is growing, let's just ride the wave.' The trend is still early. We are not talking about more than half the states, or three quarters of the states having adopted same-sex marriage. —Anthony Infanti, a constitutional law professor at the University of Pittsburgh School of Law
The U.S. Supreme Court signaled on Tuesday that it will issue decisions on Wednesday on two cases that could fundamentally change what marriage means in the United States.
Many experts think the court will strike down the section of the Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.
They also expect the court to avoid making a decision on California's Proposition 8. If the court does sidestep a decision on that case, it will likely leave in place a lower federal court decision that effectively legalizes gay marriage in California.
While no one knows for sure, Tejinder Singh at the influential SCOTUSblog predicted, based on the sequence of opinions so far, that the DOMA decision will be written by Justice Anthony Kennedy and the Proposition 8 decision by Chief Justice John Roberts.
Deep political, social and religious divides are one reason many observers expect the court to use a procedural technicality to avoid making a decision on California's Proposition 8, the controversial ballot measure which was approved by voters in 2008, overturning an earlier state Supreme Court decision that legalized gay marriage.
A 2010 Federal Court decision overturned Proposition 8, and the state itself has declined to defend the law, leaving its legal defense to an ad hoc group of supporters. One of the key questions the Supreme Court must decide is whether those defending the law have “standing.”
“Standing” refers to the rules that prevent courts from becoming circuses — by limiting access to those with definable roles in the controversy. While California law does allow supporters of a ballot initiative standing in court, there is some question as to whether that carries over to federal courts.
The standing question could allow the Supreme Court to avoid deciding on Proposition 8. As a practical matter, that would likely make gay marriage legal in California, based on the Federal Circuit Court decision which would be left in place. But this would not affect the other 35 states that currently prohibit gay marriage.
One reason the Court may be reticent to decide the fate of Proposition 8 is that justices are historically very sensitive to the Court’s unelected status, and consequently want to avoid making a sweeping decision overturning laws in the majority of states prohibiting gay marriage.
"Some people could say, 'This is the way the trend is growing, let's just ride the wave,' " said Anthony Infanti, a constitutional law professor at the University of Pittsburgh School of Law, “but others could say, 'The trend is still early. We are not talking about more than half the states, or three quarters of the states having adopted same-sex marriage.' "
So on the one hand, Justice Kennedy stands as the author of Lawrence v. Texas and Roemer v. Evans — two key Supreme Court decisions overturning state laws on sexual orientation. Lawrence invoked privacy protections to invalidate sodomy laws, while Roemer struck down a Colorado constitutional amendment that would have prohibited antidiscrimination laws protecting gays. One would expect on that basis for Kennedy to lean toward the gay rights position.
On the other hand, Kennedy is also likely to be reluctant to overturn a sizable majority of state laws in one blow, and has historically been very attuned to defending state autonomy.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at firstname.lastname@example.org.