Supreme Court and the Future of Same-Sex Marriage

Share:
SupremeCourtThe news on the same-sex marriage front was a big no new announcement, with the Court declining to take action at this time.  That leaves two huge issues open – the Defense of Marriage Act (DOMA) and California’s Proposition 8.

The delay may be temporary, with the court perhaps as early as tomorrow granting review to the awaiting cases, or the Court could actually be choosing to duck the issue.

Michael Dorf, a Law Professor at Cornell University Law School writes, “The very fact that the Court could choose to duck the issue is remarkable – and anomalous.  For most of American history, the Supreme Court was obligated to hear truly important cases like these.”

In an essay for Verdict, Legal Analysis and Commentary from Justia, Professor Dorf analyzes why the Court might not take up these issues.

He notes that there are essentially two critical questions.

First, “Is Section 3 of the Defense of Marriage Act (DOMA) – which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same sex marriage – constitutionally valid?”

Second, “Did California violate the Constitution when it enacted Proposition 8, which (prospectively) eliminated the possibility of same-sex marriage, thereby nullifying an earlier California Supreme Court ruling that had found a state constitutional right to same-sex marriage?”

In both cases, lower courts ruled in favor of challenges to DOMA and Prop 8.

There are technical difficulties in the court taking up either DOMA or Prop 8.

Writes Professor Dorf: “The Supreme Court of the United States only decides constitutional issues as they arise in concrete cases.  As a consequence, the Court must sometimes grapple with what lawyers call ‘vehicle’ problems: A case may present an important constitutional issue, but only indirectly or in a way that entangles it with unrelated procedural questions; in these circumstances, the case may be a poor vehicle for addressing the core question.”

The bottom line with the case of the DOMA, argues Professor Dorf, is “even if the Supreme Court is inclined to accept a DOMA case for review, the Justices may be struggling with the question of which case to take, so as to maximize their ability to reach the merits cleanly.”

There is a different problem with Prop 8, a problem that we actually discussed when Judge Stephen Reinhardt, of the Ninth Circuit court of appeals, offered a very limited ruling that really only applied to California.

“He did not say that every state that denies same-sex couples the right to marry thereby violates the Constitution.  Rather, he said that California’s decision to take away a right of same-sex marriage after it had granted one was motivated by anti-gay animus, and therefore violated the Fourteenth Amendment’s Equal Protection Clause,” Professor Dorf argues.  “The opinion left open the possibility that other states might have valid reasons for not recognizing same-sex marriage in the first place.”

He concludes, “The Ninth Circuit opinion only legalizes same-sex marriage in California because no other state has granted and then taken away the right.  Accordingly, the Supreme Court could deny review in the Prop 8 case without leaving the nation in a state of legal confusion.”

Professor Dorf proceeds to argue that the Court is loath to “make unpopular decisions” unless “they see no other legally permissible option.”

Professor Dorft ultimately concludes that, at least on DOMA, which would put state and federal laws in tension with each other, the court “will likely conclude that staying out of the fray is not an option.”

The interesting point, one that Professor Dorf does not make, is that the way forward for same-sex marriage really does not necessarily involve the court.  For several years, we have argued that the demographic shift will render this debate moot within a decade or two.

This November, for the first time, three states – Maryland, Maine, and Washington state – approved same-sex marriage, marking the first time states had done this by popular decree rather than through the legislature or courts.

Another 30 states have approved bans on gay marriage through similar actions.

At the same time, Minnesota also narrowly rejected a proposal that would have defined marriage solely as a heterosexual union.

Noteworthy in these results is that African-Americans and Latinos, two critical components in the Prop 8 victory in 2008 in California, narrowly voted for the same-sex marriage ban.

Analysts believe that, while the court fight in California is still playing out from four years ago, voters now would have rejected Prop 8 and perhaps would have voted to legalize same-sex marriage.

This year, President Barack Obama supported same-sex marriage for the first time and his campaign endorsed the measures in Maryland, Maine and Washington.  The Obama Administration has also taken the position that DOMA is unconstitutional.

The end game here is largely what we anticipated – although the pace seems accelerated.  We always believed time was on the side of same-sex marriage, because younger people have grown up around people open about their sexual orientation in ways that older generations have not.

The result is that same-sex marriage will probably gain acceptance in most “blue” states.  After a critical mass is achieved, it becomes a moot point for the courts, other than to settle tension between state and federal government and to perhaps deal with the issue of equal protection under the law.

The Court is probably evenly split on these issues, with Justice Anthony Kennedy casting the deciding vote.  But that, too, is in a state of flux, because it seems likely that in the next term, President Obama may be able to flip the control of the Supreme Court and that will leave little doubt as to the direction of the country on this issue.

—David M. Greenwald reporting

Share:

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

25 thoughts on “Supreme Court and the Future of Same-Sex Marriage”

  1. hpierce

    At the risk of offending everyone, I offer the following:

    At all “civil” (government) levels, get rid of the terms associated with “marriage”. Let all “joinings” of two human beings (yes, I draw the line there) be ‘civil unions’… essentially, we have that now…. if you look at the way the “state” treats marriage now, it is essentially a ‘contract’ relationship. You enter into it, you receive consideration for your contractual relationship, and you can dissolve the contractual relationship (divorce), as long as you equitably apportion the corporate assets, and deal with the corporate responsibilities (ex., children and the support of them).

    Such civil unions should have all of the [i]civil/legal rights[/i] and [i]responsibilities[/i], including taxes, medical decisions/visitation, etc.currently granted to “married” people.

    By doing this, “marriage” would be a term used by individuals to express their spiritual/religious commitment to one another, independent of “the state”.

    I can truly support my suggestions. I still have trouble calling same sex unions “marriage”.

  2. SouthofDavis

    hpierce wrote:

    > I can truly support my suggestions. I still have trouble
    > calling same sex unions “marriage”.

    This would be an easy solution to the problem, but the last thing the right or left want is for any solution since gay “marriage” not only gets a lot of people to the polls on both sides, but it is an issue that both sides have been able to use to raise tons of money. Having us focus on “gay marriage” also keeps many from looking at how both sided are ripping us off…

  3. David M. Greenwald

    “This would be an easy solution to the problem”

    I don’t agree with you that it’s an easy solution. The problem is that for a variety of reasons the term marriage has taken on an importance whether it is a symbol or real, I can’t say. Same-sex couples want the same right as two-sex couples. Opponents of same-sex marriage, particularly those who are religious, believe that marriage is a sacred commitment under God and that same-sex marriage would defile it. I don’t see this being settled by creating a new distinction that would create a second-class status (in the eyes of many) for marriage. Now you can argue that this is political – I don’t see it as such.

  4. SouthofDavis

    David wrote:

    > Same-sex couples want the same right as two-sex couples.

    And all but a small number of religious nut balls want to give same-sex couples the same rights as two-sex couples.

    > Opponents of same-sex marriage, particularly those who
    > are religious, believe that marriage is a sacred
    > commitment under God and that same-sex marriage would
    > defile it.

    It makes a lot of people (even many atheists who have never been in a church) mad that same-sex couples want to change the definition of the word marriage so an easy way to make most (but not all) people happy is for the government to get out of the “marriage” business and only grant “civil unions”. Straight or Gay couples would then have the option of getting “married” at the church, synagogue, mosque or resort hotel of their choice.

    This will never happen because it will end the “fight” over gay marriage that both sides love so much.

  5. Don Shor

    Civil unions are not recognized between states. Marriage confers benefits that civil unions don’t. It’s not that people want this fight, at least not gays. They just want the same rights as other couples. You’re all describing legal changes that would have to occur at the federal level, which decreases the likelihood of the changes occurring. There’s a reason gay activists are doing this state by state. And there’s a reason they are seeking [i]marriage[/i] equality. Civil unions don’t provide equal rights.

  6. hpierce

    “I say it 3 times”…. I propose that Federal, State, Local laws/ordinances be changed to recognize, [b]with all benefits and responsibilities[/b], civil unions, for same and opposite gender commitments. That is just, in my opinion (re-read previous post).

    I possess a “marriage license”, issued to me by the government. I could easily accepted a “civil union” license from the government. As far as government is concerned, it is a ‘contract’.

    I do also have a marriage certificate endorsed by a representative of my faith community. Of the two documents, the latter is more important to me. I promised before my spouse, my family & friends, my faith community, and my God, to be faithful, true, loving, until ‘death do us part’… this is natural and sacred to me.

    I have absolutely no problem with same sex couples having all civil rights that I and my spouse do. I support this concept.

    I reject, outright, that I have to personally “celebrate” same sex marriage as the same to my own.

    I genuinely respect anyone who makes a long-term (hopefully permanent)to another person in commitment to another.

    I respectfully disagree that it should be called “marriage”.

    If folks think I’m being too picky with words, look for a word that means ‘cigarette’ and/or a piece of wood used to build a fire. Yet that word is emotionally charged, and probably would be edited from this site.

  7. Don Shor

    Do you celebrate Zsa Zsa Gabor’s nine marriages as ‘the same to [your] own’?
    Do you celebrate Anna Nicole Smith divorcing her husband to marry a man six decades older than herself as ‘the same to [your] own’?
    What exactly is it about the lesbian couple that has lived together for more than two decades, raised a son, paid their taxes, and been productive members of your community that bothers you, while you apparently have no qualms about calling those other relationships marriages?
    How is the word more appropriate to the the first two examples I gave, but not to the other?
    What exactly is it that bothers you?

  8. davisite2

    “At all “civil” (government) levels, get rid of the terms associated with “marriage”. Let all “joinings” of two human beings (yes, I draw the line there) be ‘civil unions’… “

    The CA Supreme Court opined, in their first decision on this issue, that a remedy that would negate the need for their unconstitutional decision would be if, as is suggested above, all unions, hetero and same-sex,would be referred to with the same term, something akin to a “civil union”, all with equal rights; any reference to the word “marriage” would be removed from government vocabulary by an act of the CA legislature.

  9. davisite2

    “It’s not that people want this fight, at least not gays. They just want the same rights as other couples.”

    The fact that gay couples in CA, with its civil unions, did not choose to enter the courts to win “the same rights as other couples” which would have been a “slam dunk” victory ,IMO, negates the above statement. The SF Federal Judge who ruled against Prop 8 was quite public and clear in his perception that acquiring the word marriage for same-sex couples had much to do with feelings of societal acceptance.

  10. hpierce

    Don… apparently I touched a nerve (as I was touched by the content)
    [quote]
    do you celebrate Zsa Zsa Gabor’s nine marriages as ‘the same to [your] own’? [/quote]No… she was promiscuous, and that doesn’t fit my views…
    [quote]Do you celebrate Anna Nicole Smith divorcing her husband to marry a man six decades older than herself as ‘the same to [your] own’?[/quote]No… she appears to me to be a person whose best description would start with “w”.
    [quote]What exactly is it about the lesbian couple that has lived together for more than two decades, raised a son, paid their taxes, and been productive members of your community that bothers you, while you apparently have no qualms about calling those other relationships [b]marriages[/b]? [/quote]Don, something seems to be too personal for you here…
    I respect heterosexual couples who had children ‘out of wedlock’, I respect same sex couples who adopt or have surrogates (different issue,
    not on topic) who are committed to see their obligations through.
    [quote]What exactly is it about the lesbian couple that has lived together for more than two decades, raised a son, paid their taxes, and been productive members of your community that bothers you, while you apparently have no qualms about calling those other relationships marriages? [/quote]Only the word “marriage”… I have known, and been intimate (no, not THAT way) friends who have done that. I am NOT a bigot.
    [quote]How is the word more appropriate to the the first two examples I gave, but not to the other? [/quote]The first two were “arrangements” to my way of thinking… for convenience/social propriety.
    [quote]What exactly is it that bothers you? [/quote]Many years ago, as a “virgin”, I fell in love with my spouse. I am ‘married’ to my spouse under our faith belief… the “state” recognizes our union, but it is much more than that.
    As far as the “state” is concerned, it is a ‘contract’. No more, no less.
    I tell you again, three times, I believe same sex couples should have all the same civil privileges as are currently given to heterosexual couples… I hugely am committed to commitment. I reject the notion that I “have” to call it marriage and/or “celebrate” it.
    Why do you single me out?

  11. hpierce

    Don… get a clue… give to Ceasar what is Ceasar’s (Civil unions)… leave marriage to the faith systems.. but again, I say from the civil side, [b]all[/b] personal unions (assuming human, not livestock)should be treated equally under the law. End of discussion for me.

  12. SouthofDavis

    Don wrote:

    > They just want the same rights as other couples.

    Some same sex couples just want “the same rights as other couples” bot many others want the legal right to use the word “marriage” as a big FU to all the religious people who they know that have a different definition of marriage. Same sex couples that focus on the word “marriage” rather than equal rights are like the Sisters of Perpetual Indulgence http://www.thesisters.org/ who have fun making religious people mad.

    I believe that EVERY American citizen should have equal rights (unlike those on the right who want to make it harder for same sex couples in a relationship and those on the left that want to make it harder for white kids to go to public colleges) and I think that the Sisters of Perpetual Indulgence (and Father Guido Sarducci) are funny. Sadly I’m pretty sure that the “fight” over “gay marriage” is going to go on for years since both sides like “fighting” more that they really want equal rights.

  13. Mr.Toad

    ” I reject the notion that I “have” to call it marriage and/or “celebrate” it. “

    Call it anything you want. If you have a problem with calling it a marriage deal with it. Society is changing and leaving your sense of morality behind.( Although I do respect your monogamy.) Young people don’t care and they have tipped the scales. Many years ago, as you say, lots of things were different instead of the internet we had telegrams, stop!

  14. hpierce

    [quote] If you have a problem with calling it a marriage deal with it. [/quote]And if you have a problem calling a cigarette or a piece of wood used to build afire a “faggot”, deal with it. If you all can, I can.

    Do not tell me how I shall think or believe. I will extend to you the same courtesy.

  15. hpierce

    As I have said, repeatedly, I support FULL civil rights for all committed couples… period. Mr Toad says that isn’t enough. Sorry… won’t go there

  16. David M. Greenwald

    “It makes a lot of people (even many atheists who have never been in a church) mad”

    “This will never happen because it will end the “fight” over gay marriage that both sides love so much.”

    I disagree with you. The trend is strongly moving in the direction of gay marriage. Young people favor by 2 to 1 margins, even young Christians. This will be a non-issue in a generation, probably sooner.

  17. David M. Greenwald

    “I respectfully disagree that it should be called “marriage”.”

    Reasonable people are going to disagree on this point. I can’t tell you an opinion is wrong. However, understand a growing number of people disagree with you here.

  18. David M. Greenwald

    “As I have said, repeatedly, I support FULL civil rights for all committed couples… period. Mr Toad says that isn’t enough.”

    I think you need to understand – not necessarily support – that for some people on both sides the word is meaningful and that’s why this issue has arisen.

  19. medwoman

    “This would be an easy solution to the problem”

    I agree with David that this is not an easy solution to the problem. My objection is not political and I do not have any specific or personal interest in the outcome. My objection is that I do not believe that the definition of any word, phrase, or means of expression should be dictated by any particular group. I see this as an infringement on our fundamental right of freedom of speech. Perhaps I am misinterpreting, but what I hear hpierce saying is that religious institutions, and perhaps the Christian religion in particular, should get to control the definition of the word “marriage”. To me, if any couple in our society should get to choose to use the word “marriage” then that same right should pertain to every couple.

    If hpierce or any other individual does not want to use the word marriage with regard to a homosexual couple, no one will force them to. You can feel free to refer to them as partners, boyfriends or lesbian couple, or whatever you like. But I strongly question what would give any religion the right to dictate the limitation of the use of a word by the remainder of the population.

  20. SouthofDavis

    Medwoman wrote:

    > I do not believe that the definition of any word,
    > phrase, or means of expression should be dictated
    > by any particular group. I see this as an infringement
    > on our fundamental right of freedom of speech.

    So would you support the high school yearbook in a southern state calling the GLAD chapter the “Homo Lovers that will be dammed to spend eternity in Hell” (since you “do not believe that the definition of any word, phrase, or means of expression should be dictated by any particular group.”)?

    How about a bunch of white kids calling their African American teacher “Big Ni**er” since they claim that they are using the word as a term of endearment like many in the Hip Hop/Rapper world?

    I truly want to see equal rights for everyone and with that the people that claim that they want “equal rights” would just back down and take the “equal rights” without holding out for equal rights “and” pissing off close to half of the ~95% that has never had a same-sex relationship.

  21. K.Smith

    ” I truly want to see equal rights for everyone and with that the people that claim that they want “equal rights” would just back down and take the “equal rights” without holding out for equal rights “and” pissing off close to half of the ~95% that has never had a same-sex relationship.”

    Guess you missed the stats that David posted that show that your “close to half” is probably incorrect now and most certainly will be within a generation. Despite all of the pearl-clutching and moral outrage about this issue, the world is leaving this type of person behind. Buh-bye…have fun clinging to the 20th Century (if not the 19th).

    But I guess gays should just sit down and shut up in the meantime, and accept any meager scraps of equality you lot choose to throw them, right? Maybe just like teh wimminz should have just at down and shut up when a big chunk of the population thought them too mentally frail to have the vote entrusted to them, right? Or blacks should have just shut their mouths during the Civil Rights movement, since so many good ole boys got pissed that they demanded equality and some human dignity, right? After all, at least they weren’t being kept as slaves anymore. Nothing wrong with riding in the back of the bus or drinking at a separate drinking fountain. Separate but equal, right?

    They should have all just shut up to avoid upsetting half of the people.

  22. SouthofDavis

    K. Smith wrote:

    > But I guess gays should just sit down and shut
    > up in the meantime, and accept any meager scraps
    > of equality you lot choose to throw them, right?

    You may have missed my point I want the government to treat EVERY person(that is a US Citizen over 18) EXACTLY the same (not throw scraps of equality to everyone).

    Let’s just admit that the word “marriage” is loaded for a lot of people (just like a lot other words that are loaded that the government does not use) and stop the “government” from using the word marriage in any official documents (just like we stopped them from using the words “colored” and “bastard” on official documents years ago).

    We will still have free speech and just like individuals are free to say things that make a lot of people mad (People in the south can still call the African American guy down the street “colored” and the single mom’s kids “bastards”) straight couples and gay couples can still say they are “married” (when in the eyes of the government everyone is in a “civil union”).

  23. medwoman

    SOD

    [quote] truly want to see equal rights for everyone and with that the people that claim that they want “equal rights” would just back down and take the “equal rights” without holding out for equal rights “and” pissing off close to half of the ~95% that has never had a same-sex relationship.
    [/quote]

    I am not sure whether or not you are deliberately misconstruing my position. You seem to be making the assumption that gays want to use the word “marriage” just to “piss off” another group of people. I do not believe that this is the case. I do not believe that the use of the word “marriage” has been used historically to provoke anger or fear, or really any other strong emotion, as has been the case with your example of the word “nigger” or in calling down damnation upon a distinct group as in your first example. So, for that reason, I do not believe that your analogies are at all applicable. However, I will address the bigger issue that this poses. Do I believe in freedom of speech even if that speech is not what I support or feel is civil as long as it is not an inducement to violence or likely to provoke panic. My answer is “yes”. I have stated on several threads that I abhor the message of the
    Westboro Baptist Church, especially when they spew their particular brand of filth at soldier’s funerals. However, as long as they confine their activities within the law, I will absolutely defend their right to state their opinions publicly.

    So although I respect your right to be “pissed off” by the use of the word “marriage” in a way that you do not like, or that you may feel is not respectful of the limitations that you would like to see applied to the word, I do not agree.
    I do not feel that your desire to feel unique or special when this word is used, should trump the right of others to use it for situations to which they equally strongly feel it applies.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for