Brown v. Board of Education: The Sequel?
It is now official; in less then seven months from today, the United States could grant gay and lesbian Americans the right to marry in all fifty states. Or just some. None at all. Or punt the issue entirely. Wait, what? Let’s break it down.
For those not familiar with the procedural machinations of the Supreme Court, today the Court ordered writs of certiorari, aka approval for judicial review, to hear two landmark cases concerning same-sex marriage in America. In order for the Court to take a case, only four Justices need to approve a case (of course five votes are ultimately needed to decide it). With that being said, what really matters when the Court decides to hear a case is what “questions presented” the Justices ask the parties in a case to argue to them, and that is why today was so important. More on this in just a moment.
For court watchers, today was so suspenseful because the Court had ten different cases concerning same-sex marriage to choose from when they met in conference. Would they take the case out of Massachusetts, Gill v. Office of Personnel Management (profiled in this magazine in our May/June 2011 issue), thus denying a full review by the Supreme Court since Justice Elena Kagan would likely have recused herself due to prior work on the case? Or would the court take the famous “Prop 8” case out of California, where the blockbuster lawyers David Boies and Ted Olsen (famous for being on opposite sides of the Bush v. Gore case that decided the 2000 election) who are arguing the pro-gay marriage side?
At 3:13 eastern time today, the Court put all that speculation to rest. It would take not one, but two same-sex marriage cases. The first, Hollingsworth v. Perry (the Prop 8 case) has the court considering perhaps the most monumental judicial question of our lifetimes: does the constitution allow for states to ban marriage between same-sex couples? The Justices could have gone small, asking the parties to answer only case-specific questions, for example, only reviewing whether the act of taking away a right to marry was constitutional, a decision whose implications would have only affected the citizens in California. If you remember, gay marriage was legal for a short time in California until voters in 2008 took that right away. But the Court did not take up that narrower question.
The second case the Supreme Court granted review on, United States v. Windsor, concerns Edie Windsor and her now deceased spouse Thea Spyer. The two had lived together as registered domestic partners since 1993. When Windsor’s wife died in 2009, Windsor was forced to pay $363,053 in estate taxes that she would not have had to pay if the federal government recognized their marriage. The case directly challenges section three of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman for the purposes of over 1,000 federal benefits. More broadly, this case concerns issues of federalism, specifically what power states have to enforce certain rights and how the federal government can influence states to do its bidding.
Of the two cases at issue here, the Windsor case looks particularly appealing for a win, as its ruling could potentially not be as sweeping in scope. If the court were to rule in favor of Windsor, for example, it would not necessarily mean that DOMA would be completely overturned; in fact, the Court could rule that only section three is unconstitutional and still allow the states to individually enforce the other sections of DOMA as they saw fit. Crucially, the powerful emotional story of Edie and Thea could possibly sway enough Justices with more conservative notions of what it means to be married into a pro same-sex marriage position.
Finally, the Court in its order today also allowed for another possible outcome: none at all. In a rare move, the Court issued questions it wanted answered to parties on both sides of both cases (usually the questions are presented to the Justices and they pick which ones they want to consider). The court asked if both parties had standing to even challenge the case, in other words, could these petitioners even challenge the law. Theoretically, the Justices could rule that neither party has standing and dismiss both cases from the Court until the issue resurfaces with parties that do indeed have standing. This is unlikely, but still well within the realm of possibility.
The only sure thing we know from today is that at some point around March, the Supreme Court for the very first time will consider issues of same-sex rights as it relates to marriage. A momentous, albeit terrifying moment for many gay and lesbian Americans to be sure. At a time where public opinion is rapidly shifting to a more inclusive definition of marriage, the Supreme Court has firmly inserted itself into this historic debate. Will the Court aim for a Brown v. Board of Education type of outcome? Only time will tell of course, but this writer (not so) secretly thinks yes.
Next up: oral arguments!
This article is the sole opinion of OutServe Magazine contributors and does not reflect the position or official endorsement of OutServe-SLDN organization.