The Supreme Court announced last week that it will decide two major cases that could have a sweeping effect on the rights of same-sex couples to wed. This is the first time the Court will consider arguments for and against same-sex marriage.
First, the justices will review California’s gay marriage ban, which passed in a 2008 ballot initiative, Proposition 8, months after California’s high court had legalized same-sex unions — and thousands of gay couples had already wed in the state. Two federal courts have struck down Proposition 8 as discriminatory, leaving the Supreme Court to render a final judgment.
It all began in 2004, when Mayor Gavin Newsom famously opened San Francisco’s City Hall to gay couples wanting to marry. That action paved the way for Proposition 8 and all of the litigation that’s followed. As I have noted in writing and on national television, it has been a rollercoaster of on-again, off-again marriage for gay couples in the Golden State.
Indeed the battle for equality rages on across the country. Until 2004, gay couples couldn’t marry anywhere. Now, same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Maine, Maryland, Washington. But 36 states have statutes on the books affirmatively prohibiting gay marriage, including some that also have constitutional bans.
It has thus become one of the most contentious issues of our time. The battles being waged in the states are all part of a larger war about what we stand for as a nation. Is ours a limited democracy — retrenched, traditional and exclusionary? Or is our democracy expansive and inclusive — one that evolves over time?
The justices may decide whether a ban on gay marriage is legal in the specific case of California, where gay couples were allowed to marry for several months before the ban passed. Such a narrow decision would not necessarily affect gay marriage bans that have passed in dozens of other states where same-sex marriage was never legal in the first place.
It is also possible for the justices to make a broader ruling.
David Boies, one of the lead attorneys in the battle against Prop 8, calls same-sex marriage the civil rights issue of this era. His co-counsel, Ted Olson, a former U.S. solicitor general under President George W. Bush, believes there is a “fundamental constitutional right to marry for all citizens.” If the justices agree, states could no longer ban gay marriage, dealing the anti-gay marriage movement a fatal blow. But if they reject the argument, it would shut down legal challenges to state marriage bans and significantly set back the movement to expand the right to gay sex marriage.
Which brings us to the second case, the challenge to the federal law passed under my former boss President Bill Clinton that prevents the federal government from recognizing gay marriages, the so-called Defense of Marriage Act (DOMA). Edith Windsor, a resident of New York, paid $363,000 in estate taxes after her wife died because the federal government did not recognize their marriage. New York is one of nine states (and the District of Columbia) where gay marriage is legal. Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage. Recently, two federal appeals courts have struck down the law as unconstitutional, virtually requiring the Supreme Court to settle the dispute between the courts and Congress.
In an interesting twist, the Obama administration decided last year to no longer defend DOMA, so Congress has hired outside counsel to argue on behalf of the law. The Obama administration placed itself on the side of an expansive and inclusive democracy when the U.S. Department of Justice announced that it would no longer defend the federal law banning same-sex marriage.
It is unlikely the court will deliver the sweeping ruling the Boies and Olsen are hoping for — that all Americans, regardless of sexual orientation, have a fundamental right to marry. Given that marriage has traditionally been regulated by the states, it is more likely they will use the Windsor case to narrowly decide whether the federal government has a legitimate interest in refusing to recognize gay couples that wed in states where gay marriage is legal.
Of course, it is impossible to predict what the nine justices will decide in this, or any other area of law. Few would have predicted the 1967 ruling in Loving v. Virginia in which a unanimous Supreme Court struck down as unconstitutional all race-based legal restrictions on marriage in the United States.