‘Opportunities and Risks’ Presented by High Court’s Decision to Take Marriage Equality Cases

December 10, 2012

by Jeremy Leaming

Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

As The New York Times’ Adam Liptak notes public opinion in favor of same-sex marriage may be ahead of where a majority of the Roberts Court is on the matter. And, he notes that the high court’s decision to review both the Ninth Circuit Proposition 8 case and Second Circuit’s DOMA case “has some gay rights advocates bracing for a split decision.” Liptak says the high court could invalidate the so-called Defense of Marriage Act or DOMA on grounds that Congress overreached and strike the Ninth Circuit’s opinion on Prop. 8, holding that the Constitution does not require states to recognize same-sex marriages.

Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

Boston College Law School Professor Kent Greenfield in piece for The American Prospect says he sees split rulings on the way, and explains why supporters of equality should be concerned.

He writes:

Any Court watcher with a functional brain stem will tell you the cases will likely turn on the views of Justice Anthony Kennedy. That the Court voted to hear both cases leads me to fear that both the four liberals and the four conservatives believe that Kennedy’s vote is theirs for the taking. The problem is that while the liberals probably think he’s getable on the DOMA case, the conservatives believe he’ll end up on their side in the more important, and more dangerous, Proposition 8 case. 

So why is the Proposition 8 case more important, potentially more dangerous than the one aimed at bringing down a federal law that discriminates against lesbians and gay men in the vast majority of states?

Greenfield notes that if DOMA is struck the government only has “to recognize same-sex marriages where they already exist,” leaving the majority of the states to do as they wish, with many of them likely sticking with discrimination. (Greenfield, as an example, notes the deep-red state of Tennessee where lawmakers passed a measure prohibiting “teachers and students” from even talking about same-sex marriage.)

If the rightwing majority of the high court, this includes Kennedy, were to topple the Ninth Circuit’s opinion on Proposition 8 finding that state bans on same-sex marriage do not violate the equal protection or due process clauses of the Constitution, then Tennessee and other hard-core conservative states will for many years to come continue to prohibit same sex marriage.

Greenfield, however, notes that there is a way for the justices to avoid the constitutional concerns raised in the Proposition 8 case, by finding that the groups defending the discriminatory measure are not the correct plaintiffs and therefore have no standing to defend the measure. (As Greenfield notes, California Attorney General Kamala Harris refused to defend Proposition 8, “so lower courts allowed the initiatives proponents to stand in on appeal.”)

The movement for marriage equality has gained enormous momentum, and quickly and the high court’s decision to enter the fray is fraught, as Wu said with great risk. But even after the high court hands down its decisions in the cases, likely late June, the efforts to advance equality for the LGBT community will be just as daunting and just as important.

Marriage, as important as it is for many in the community, is not the capstone of equality. There are still long ways to go before full equality for lesbians, gay men, bisexuals, transgender people and our gay youth are recognized.

Regardless of what happens in our courts, the struggle for equality is never easy, smooth or quick. Indeed it’s often been the very opposite -- tragic, bloody, infuriating and excruciatingly slow.