How the Supreme Court Might Decide the Fate of Same Sex Marriage

This week, the Supreme Court will hear two cases that have the potential to be groundbreaking for the future of LGBT rights in America. This blog post will give you an overview of the cases, how and when to follow oral arguments, and a basic legal background to help you understand what’s at stake and what the court might do.

Hollingsworth v. Perry

  • Issue: The legality of California’s Proposition 8 which amended the state constitution to prevent same-sex couples from marrying.
  • Oral Arguments: March 26th around 10:00 a.m. EST.
  • Live Blog: SCOTUSBlog.
  • Audio: March 26th at 1:00 p.m. EST on

Options for the Court

Option 1: Dismiss the case on standing grounds.
Result: Unclear. Same-sex marriage would probably become legal in California, but more litigation would follow.
Likelihood: Medium.
Further Reading: This incredible seven-part series from SCOTUSBlog.

The threshold question for the Court is whether it has jurisdiction to even hear the case in the first place. This lawsuit started when Kristin Perry and Sandra Stier sued the state of California because it wouldn’t grant them a marriage license. The case went to court and the judge ruled that the couple had a constitutional right to marry.

This is where the story gets complicated. The state of California agreed with the court’s ruling and was ready to grant the marriage license. That’s when a group of organizers who campaigned for Proposition 8 (we’ll call them “Hollingsworth,” for short) decided to appeal the decision themselves. Their involvement raises some serious constitutional questions. The doctrine of “standing” requires that in order to get involved with a lawsuit, you have to have been personally harmed. A general harm – like disliking a law or court decision – isn’t enough. For instance, a straight couple could not sue California for not allowing same-sex marriage.

The Supreme Court needs to decide (1) whether Hollingsworth represents the state of California itself in this lawsuit, which would give it standing, or (2) whether Hollingsworth was sufficiently harmed from the lower court’s decision to give it standing. The argument there is that the court’s decision invalidating a proposition that the supporters worked so hard to pass creates a sufficient, individualized harm.

If the court finds that Hollingsworth doesn’t have standing, they will be unable to give any opinion about Proposition 8. The lower court’s decision, which invalidated the law, would probably go back into effect. No one would be allowed to appeal the decision.

Option 2: The “California Option”: Find that a state cannot ban same-sex marriage when (1) it offers domestic partnerships to same-sex couples and (2) it previously allowed same-sex marriage, then took it way.
Result: Same-sex marriage would become legal in California, but no other state.
Likelihood: High.
Further Reading: The 9th Circuit’s opinion.

The District Court judge wrote a broad opinion that would legalize same-sex marriage in all 50 states. The Court of Appeals, recognizing that the Supreme Court would be unlikely to adopt that, wrote a much more narrow opinion. It first found that none of Hollingsworth’s reasons for opposing same-sex marriage ((1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools) made any sense because the state already offered domestic partnerships that gave all the same benefits of marriage to same-sex couples. The only thing that Proposition 8 did was take away the title of marriage.

The 9th Circuit then went one step further. It found that Proposition 8 was especially unique and bad because the state gave marriage to same-sex couples then took it away. “The context matters,” the court wrote. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.”

This approach might be especially appealing to the Supreme Court. Justice Kennedy will probably write the opinion of the court. He has previously written the two most important pro-LGBT cases in Supreme Court history, so he’s sympathetic, but he’s probably worried about writing too drastic of an opinion. This option lets him grant marriage equality in this case, but limits the effect so the court doesn’t go too far in front of public opinion.

Option 3: The “Nine-State Option”: Find that a state cannot ban same-sex marriage when it offers domestic partnerships to same-sex couples.
Result: Same-sex marriage would become legal in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
Likelihood: High.
Further Reading: The 9th Circuit’s opinion.

This option is very similar to the California Option, but would have a slightly bigger effect. Again, it’s appealing to Justice Kennedy because it doesn’t force Mississippi to come kicking-and-screaming to marriage equality.

Option 4: The “Fifty-State Option”: Find that a state cannot ban same-sex marriage.
Result: Same-sex marriage would become legal in all fifty states.
Likelihood: Extremely low.
Further Reading: The District Court’s opinion.

I won’t bore you with the legal arguments here, because this option is so unlikely. I would be shocked if there were even three votes for this. There isn’t the will-power to get this far in front of public opinion.

Option 5: The “Zero-State Opinion”: Find that Proposition 8 does not violate the Constitution.
Result: Same-sex marriage would remain illegal in California.
Likelihood: Low.
Further Reading: The Family Leader’s Facebook page.

This option is unlikely. The structure would be something like this: (1) discrimination against LGB individuals is subject to only rational basis review (the most permissive court review that allows any law that is rationally related to a legitimate state interest; almost every law imaginable passes this test) and (2) some interest named by the state is a legitimate state interest. It’s hard to believe Kennedy would accept the first premise. In Romer, an opinion he wrote, the court found that discrimination against LGBT individuals was subject to a tougher “rational basis with bite” test. Even if Kennedy turned back on that, many courts have found that a ban on same-sex marriage is so unique and discriminatory that it can’t even survive traditional rational basis review.

In particular to this case, both lower courts tore the state’s justifications for Prop 8 to shreds. It’s hard to justify a law that only thing withholds the word “marriage” from same-sex couples while still giving them all the marital benefits.

United States v. Windosr

  • Issue: The legality of the Defense of Marriage Act (DOMA). The case has nothing to do with whether same-sex couples can get married, but rather happens to them after they are married.
  • Oral Arguments: March 27th around 10:00 a.m. EST.
  • Live Blog: SCOTUSBlog.
  • Audio: March 27th at 2:00 p.m. EST on

Options for the Court

Option 1: Dismiss the case on standing grounds.
Result: Unclear.
Likelihood: Low.
Further Reading: This incredible seven-part series from SCOTUSBlog.

There are two standing issues in DOMA. The plaintiff is Edie Windsor, an elderly woman who was charged $363,000 in taxes after her wife died (they were married in Canada). If it wasn’t for DOMA and she was treated like any other widow, she wouldn’t have been charged anything.

There are two defendants in the case. The first is the United States (represented by the executive branch). President Obama has made it clear that they believe DOMA is unconstitutional, but they refuse to refund her taxes until the courts strike down the law. There’s a constitutional standing rule that the Supreme Court can’t give any advisory opinions. That means you can’t go to the court (as a general rule, there are exceptions) and say “if I refuse to pay Ms. Doe this money, what will happen?” There needs to be an actual dispute between adverse parties. Some people argue that, since the Obama Administration thinks DOMA is unconstitutional, they can’t appeal a lower court decision that finds the law to be unconstitutional. The Obama Administration responds that it still hasn’t paid Windsor the $363,000. Until they do, the argument goes, the parties are adverse.

The other defendant is the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives. This five-person committee is made up of the Speaker, the majority and minority leaders, the majority and minority whips. Two years ago the committee voted – unsurprisingly – 3-2 to intervene in the lawsuit and defend DOMA. Earlier this year, the House passed a resolution saying BLAG represented them in the DOMA trial.

The issue for BLAG is whether five members of the House or the House itself has standing in this suit. To have standing, the court has to find that there was a sufficient harm caused to BLAG/the House by a law of theirs being struck down. In the past, the court has allowed Congress to defend laws that the executive branch won’t, but it has never allowed a single house of Congress, nor a committee.

If the court finds that either party has standing, it is sufficient to allow them to hear the case. All three parties believe that someone has standing (BLAG thinks they do but the US doesn’t, the US thinks the reverse). Thus, the Supreme Court appointed a Harvard professor to argue there is no standing at all. The conventional wisdom is that the court will find the US has standing, but BLAG does not. It’s worth noting that the court granted an extra hour of oral arguments to consider this issue (which they did not do in Prop 8) which suggests they will take it seriously.

Other Options

There are a handful of ways the court can decide this issue on the merits. It helps to have an understanding of the Equal Protection Clause of the 14th Amendment, which is how this case will be decided. There are three-ish forms of review that the court can apply: (1) strict scrutiny, (2) intermediate scrutiny, or (3) rational basis review.

Standards of Review

Strict Scrutiny (SS): To pass strict scrutiny, the toughest form of review, a law must be (1) narrowly tailored to a (2) compelling governmental interest. Strict scrutiny applies to laws that discriminate based on race, and no one seriously thinks it will be extended to LGBT discrimination.

Intermediate Scrutiny (IS): To pass IS, a law must be (1) substantially related to an (2) important governmental interest. IS applies to gender/sex based discrimination.

Rational Basis Review (RB): To pass RB, a law must be (1) rationally related to a (2) legitimate state interest. RB applies to (basically) any discrimination that isn’t race or gender based. It is extremely rare that will strike down a law under RB.

Rational Basis with Bite: This is a newer form of review that is tougher than RB but less tough than IS. It applies when the motivation for a law is solely to harm a politically unpopular group. RB with Bite has been used to strike down laws that showed animus towards hippies, the mentally disabled, and LGBT individuals.

Which Basis of Review Applies?

There’s no concrete test to decide what groups are granted a heightened form of scrutiny. The court is generally very hesitant to do so. It hasn’t granted any new group heightened scrutiny in the past 40 years (gender/sex-based). Generally, the considerations are:

(1) Whether the characteristic has subjected the group to a history of social and legal discrimination;

(2) Whether the characteristic of the group is generally related to the person’s ability to perform or contribute to society;

(3) Whether the characteristic of the group is immutable; and

(4) Whether the group is so politically weak that it needs the protection of courts from overweening legislative majorities1.

Again, this is an art, not a science.

Equal Protection Options for the Court

Option 2: Find that IS applies and that DOMA is unconstitutional.
Result: DOMA would be struck down.
Likelihood: Medium

Option 3: Find that IS applies and that DOMA is constitutional.
Result: DOMA would be upheld.
Likelihood: Very low.

It’s fairly unlikely, I think, that the court will grant a heightened form of scrutiny. Kennedy had the option to do some in his two previous pro-LGBT decision, but elected not to. There’s a lot more political cover for him to do so now, but it would still surprise. However, if the court does grant IS, DOMA will almost certainly be struck down – “important governmental interest” is a very high standard. What would follow is an avalanche of litigation that would strike down innumerable anti-LGBT laws across the country.

Option 4: Find that Rational Basis with Bite applies and that DOMA is unconstitutional.
Result: DOMA would be struck down.
Likelihood: High.

I think this is what will happen. Kennedy will follow his opinion in Romer and say that DOMA was enacted solely out of animus towards the same-sex couples (which it obviously was). It lets him strike DOMA will still leaving some flexibility to decide future cases.

Option 5: Find that RB applies and that DOMA is unconstitutional.
Result: DOMA would be struck down.
Likelihood: Medium.

This is another possibility that some courts have done, but I would expect Kennedy to return to his “animus” language under RB with Bite if he doesn’t want to give heightened scrutiny.

Option 6: Find that RB applies and that DOMA is constitutional.
Result: DOMA would be upheld.
Likelihood: Low.

Here is the only realistic way that DOMA will be upheld. RB is an extremely deferential standard that almost any explanation can survive under. Considering not a single federal has upheld DOMA, however, I’d be shocked if the Supreme Court did so.

Other Issues

Option 7: Federalism?
Result: No one has a clue.
Likelihood: No one has a clue.
Further Reading: Gill v. Office (1st Cir.)

Lurking in this case is a federalism issue that found its way into the First Circuit Court of Appeals case striking down DOMA. The argument goes like this: marriage has always been left to the states to define. By taking this issue over, the federal government is undermining the rights of the states protected by the 10th Amendment.

No one has a clue what will happen if the Supreme Court buys into this argument. It might apply a tougher form of rational basis review. It might provide an independent basis to strike down DOMA. No one knows.

What’s great about this argument, though, is that it gives the conservatives some cover if they’re inclined to strike down DOMA. This might be especially appealing to Justice Roberts – a man who has a history of supporting LGBT individuals. Look for this to be brought up during oral arguments to see how receptive the conservatives are to it.

Have any questions? Feel free to ask in the comments. I’ll be following the oral arguments all day Tuesday and Wednesday and will be available to answer any questions that come up then.

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