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