December 10, 2012
As you are no doubt aware by now, the Supreme Court agreed to hear two cases on same-sex marriage.
I am not surprised that the Court granted cert to U.S. v. Windsor; the time is right for the Supreme Court to address the constitutionality of the Defense of Marriage Act (DOMA) since it has been invalidated by several federal appeals courts, and, as I wrote last month, since SCOTUS will want to address the issue of homosexuals as a suspect class and Windsor is the best case with which to do that.
Perry is the “Prop 8 case” – the legal challenge to California’s Proposition 8, which was a 2008 ballot initiative that amended the California State Constitution by adding a section that simply read that “only marriage between a man and a woman is valid or recognized in California.”
And here’s what surprised me about it all: the Ninth’s Circuit’s ruling didn’t really break into any new legal ground; it was essentially a rehashing of Romer v. Evans, holding that Prop 8 was unconstitutional because its purpose was to make “a judgment about the worth and dignity of gays and lesbians as a class.”
The Ninth Circuit’s ruling is actually pretty narrow, since it only applies in situations where a preexisting right was revoked by the state.
So, like I said in my post from November, unless the Court is going to expand the scope of Perry to have a meaningful nationwide impact on the issue of same-sex marriage, such a ruling would be far too narrow on such a hot topic for the Court’s tastes.
Seemingly, SCOTUS is going to expand Perry’s scope, since the question it will be looking at is whether state bans on same-sex marriage violate the Fourteenth Amendment’s Equal Protection clause.
At this point, though, is where my surprise comes in.
The question presented by Windsor’s petition for cert is whether DOMA’s Section 3 violates the Fifth Amendment’s Equal Protection clause.
However the Court rules on Windsor would have applied to the states via the Fourteenth Amendment regardless of whether the Court even heard Perry.
Thus, the granting of certiorari to both Windsor and Perry seems a bit extraneous, especially when there are eight other cases were seeking SCOTUS review on this issue.
After mulling it over for awhile, though, I came up with three possible explanations for this.
1. The Supreme Court is teeing up for a sweeping decision on the issue of same-sex marriage.
I’m not saying that the Supreme Court’s two grants alone demonstrates that SCOTUS is on the verge of granting same-sex couples the right to marry; I’m saying that, by looking at the issue on both the federal and state levels, the Supreme Court may be setting itself up for a sweeping ruling on same-sex marriage – either one way or another (but I’ll provide my own prediction on how the Court will rule and an explanation for it in forthcoming posts).
2. In case one of the cases is dismissed for lack of standing, the Court has a backup.
As those who have read the certiorari grants know, the Supreme Court added additional questions to each case:
Windsor: “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in the case.”
Perry: “Whether petitioners [(Prop 8’s supporters)] have standing under Article III, § 2 of the Constitution in this case.”
As Article III standing buffs would tell you, these are actually very significant questions independent of the same-sex marriage issues; again, though, I’ll get into this in more detail in a forthcoming post.
My point here is that, in case either of these cases fails the standing test, the Court has a backup case to make a landmark ruling on same-sex marriage.
3. SCOTUS doesn’t want to tip its hand.
Had the Court denied certiorari to Perry, it would have left the Ninth Circuit’s ruling intact – legalizing same-sex marriage in the nation’s most populous state.
This action would no doubt have been interpreted by many Court observers as SCOTUS taking a pro-same-sex marriage stance, and would have left far less speculation about and anticipation in the Court’s announcement of Windsor.
Thus, the Court may have decided to hear Perry to prevent such a scenario.
Nevertheless, Perry is actually a pretty significant case in its own right, so the decision to review it isn’t as frivolous as it would have been if motivated solely by the Court’s indulgence of its love for the spotlight.
These three possibilities are actually probably true to varying degrees, but one possibility circulating around – that SCOTUS is going to just “split the difference” by striking down Prop 8 but upholding DOMA (or vice versa) and thereby giving victories to both sides of this particular “culture war” issue – is highly unlikely (but I’ll more in detail on that in future posts).
In any case, Friday’s grants to these two cases are going to make this Supreme Court term quite memorable.