On March 26 and 27, the Supreme Court will hear arguments in two cases—one challenging the Defense of Marriage Act (DOMA), the other California’s Proposition 8—that could decide the fate of same-sex partnerships, at least for now. However much emotion may lie under the surface of these cases, the Court will not decide based on the heartfelt stories of same-sex unions or on the moral rhetoric of traditional marriage’s defenders. Instead, the opinions will invoke various theories of constitutional interpretation and legal doctrines. But underneath that patina are the social and political realities of a decision in either direction.
Hollingsworth v. Perry confronts whether California’s 2008 constitutional amendment to ban same-sex marriage violates the U.S. Constitution, specifically its guarantee of equal protection to all persons under the law. Prop 8 drew a lot of attention during the 2008 election; it was bolstered by a host of religious organizations, notably the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and megachurch pastor Rick Warren. It passed by a 52 to 48 percent margin, receiving more than 7 million “yes” votes. Then two same-sex couples filed suit in federal court to invalidate Prop 8. The trial court voided the amendment and a federal appeals court affirmed that decision on equal protection grounds.
In United States v. Windsor, the plaintiff, Edith Windsor, is an 83-year-old widow who is challenging section 3 of DOMA, also on equal protection grounds. When her spouse Thea Spyer died in 2009, Windsor was not allowed the marital deduction for estate taxes, though she and Spyer legally married in 2007. DOMA, enacted in 1996 under the Clinton administration, makes federal marital benefits available only to married couples of the opposite sex. Because of this, Windsor paid some $350,000 in estate taxes before she sought a refund in federal court. The trial court agreed with her, and the federal appeals court affirmed the ruling; the federal government has appealed to the Supreme Court.
Both cases come with emotionally compelling claims. If section 3 of DOMA is stricken, same-sex couples who have lawfully married will be entitled to all the benefits and obligations that federal law confers on married couples. If Prop 8 is voided, the effect will depend on the rationale used by the Court: It could reinstate same-sex marriage in California alone, enable same-sex marriage in a handful of other states as well, or mean that gay and lesbian couples could marry in all 50 states. Decisions along these lines would further energize advocates of gay and lesbian rights. But different outcomes, ones that uphold DOMA and Prop 8 or fail to decide these issues, would be a boon to those who have fought hard to retain the traditional understanding of marriage as a union of one man and one woman.
While these would appear to be blockbuster cases, there is a chance the Supreme Court may not decide the big issues in either case because the executive branches of the United States and California have each refused to defend the laws in question. In Windsor, Congress acted to defend DOMA when the Justice Department refused to. In Hollingsworth, the proponents of Prop 8 stepped in to defend the amendment. In each case, a preliminary issue is whether the defenders have standing to litigate, legal jargon for the right to be a party to the suit. To have standing the defenders must prove at least that they have a concrete, personal stake in the case. In Windsor, Congress must prove that it would suffer the discrete injury of a law it enacted being struck down without any defense of its validity. If Congress doesn’t meet this requirement, and no other person has standing to defend the law, the law could be nullified by the president’s failure to defend it, a result that is akin to a veto long after the law’s enactment.
In Hollingsworth, the only reason the case is still alive is that the trial court permitted the proponents of Prop 8, individuals connected with a coalition of conservative and religious groups, to defend the measure. A citizen who thinks a law is unconstitutional lacks standing to contest the validity of that law unless he or she has suffered some injury from the law that is not shared by the general public. Prop 8’s supporters must show that they have a stake in the law’s validity that the general public lacks. That Prop 8’s proponents spent a lot of time, effort, and money to convince Californians to vote for the measure might be enough. If not, either the trial court ruling stands, which benefits only the two couples who brought the suit, or the trial court judgment is also vacated, in which case Prop 8 stands until the entire issue is litigated anew.
Oral argument provides clues to the Court’s eventual decision, but often merely tantalizes the listener. The Court will likely hand down their rulings by June, and in the meantime, justices ask questions for a variety of reasons: to better understand the implications of an argument, to help counsel with arguments with which they agree, to signal their own views, to express skepticism, etc. During oral argument pay attention to whether the justices’ ask about standing issues or whether they prefer to inquire about the underlying issues of the validity of DOMA and Prop 8. In Windsor Congress is likely to have standing because the legislature does suffer a unique injury: a bill it enacted and signed into law by President Clinton would be repealed, in essence, by President Obama’s refusal to defend it. That is an injury unique to Congress and not shared by the general public.
The Prop 8 proponents in Hollingsworth may meet a different fate. Despite their efforts in persuading voters to pass Prop 8, their injury is different only in quantity, not quality, from that suffered by any Californian who voted for Prop 8. This result might be reinforced by the practical effect of such a ruling: It would leave Prop 8 susceptible to another challenge without any defense of it by California. In that case, Prop 8 would likely die at the hands of another trial court. But the larger issue of the validity of state laws that prohibit same-sex marriage would remain alive for later litigation, perhaps from some other state with none of the standing baggage attached.
While it is pure speculation, a practical reason for the Court to find a lack of standing in Hollingsworth is the specter of Roe v. Wade and its aftermath. Roe overturned all state laws prohibiting abortion, and even those that severely regulated but did not outlaw abortions. The result, as Justice Ginsburg noted in her Madison Lecture at NYU Law School, delivered 20 years ago this month, was that the trend in the states toward progressive legalization of abortion was truncated by a sweeping judicial fiat. Had the Court confined itself to striking down the Texas law at issue in Roe, without addressing the validity of other states’ laws, there would have been room for further evolution of abortion laws in the states. Instead, Roe closed the door of legislative change and brought about a 40-year battle of high emotions, even violence, and stubborn opposition to Roe and its progeny.
When people feel that they have lost in an open and democratic debate, they may not like it but will usually accept the popular verdict. But when people feel that their voice has been ignored by a process in which they have no input, they are apt to resist the result as an illegitimate usurpation of democratic institutions. No doubt the Supreme Court in 1857, when it decided the infamous Dred Scott case, thought that it had laid to rest the debate over slavery in the territories, but what it actually did was further inflame the passions that ultimately led to civil war. The stakes may not be as high in Hollingsworth but these historical lessons are well known to the justices. They could lead to a decision ending the case for lack of standing or, even if standing is found to exist, a decision that confines the effect of striking down Prop 8 to California alone.
In Windsor, once standing is found, the question is whether Congress has the power to make federal marriage benefits available only to opposite-sex couples. Congress has the power to decide who gets federal benefits, but it may not classify groups of people in a way that violates the Constitution. The likely broadest rationale for striking down DOMA is that depriving same-sex married couples of marital benefits is irrational, given the historical reliance of the federal government on state law definitions of marriage. Such a ruling only extends federal marital benefits to those same-sex couples who are legally married in Washington, D.C., and the nine states that permit such marriages. That is a long way away from striking down the marriage laws of the other 41 states. It’s likely that the Court will strike section 3 of DOMA and avoid any broad ruling on same-sex marriage in the California case. But predicting Supreme Court decisions is a rash act: He who uses the crystal ball must be prepared to eat ground glass.
Calvin Massey is the Daniel Webster Distinguished Professor of Law at the University of New Hampshire Law School.