I’m sure the vast majority of you don’t follow SCOTUSblog (SCOTUS means Supreme Court of the United States), and I don’t blame you at all if you don’t. It’s constitutional law for Heaven’s sake.
But there are times when the Supreme Court’s decisions interest a lot of people, such as in Brown v. Board of Education (1954), Loving v. Virginia (1967), Roe v. Wade (1973), and the disastrous and horrible Plessy v. Ferguson (1896). There was a lot of interest about the outcome of the recent Affordable Care Act case (which was found to be constitutional with a few changes).
The two cases SCOTUS is taking up are United States v. Windsor (the federal Defense of Marriage Act or DOMA case) and Hollingsworth v. Perry (the California Prop 8 case). Oral arguments will be heard in March 2013 and decisions are expected by June 2013.
These decisions are important because they will set the law of the land, and broad-reaching negative decisions could set LGBTQ equal rights back a generation.
There is a fundamental procedural issue with both cases involving Article III Section 2 of the U.S. Constitution itself. The parties on both sides of any case coming before a court must be proper parties, meaning the outcome of the case must directly affect their institutions or lives. Federal laws are usually defended by the U.S. Department of Justice (DOJ), and state matters are usually defended by the attorney general of the state in question.
In the DOMA case, the DOJ has not been defending the law in court. They left DOMA defense to the House of Representatives, and the Justices question whether the House can properly represent the U.S. government. Edith Windsor is a proper party to the DOMA case.
In the Prop 8 case, the state of California initially defended it in federal court, but dropped its defense on appeal because all state parties consider the amendment unconstitutional on due process and equal protection grounds. Federal Judge Vaughn Walker allowed Hollingsworth et al. to intervene as secondary defendants in the initial case when Perry et al. sued the state of California. Perry is a proper party.
The Prop 8 case was taken to federal court because the California State Supreme Court already ruled on marriage equality and upheld it. Prop 8 amended the California constitution banning same-sex marriage. The state supreme court would have little choice but to rule against any plaintiff seeking reinstatement of same-sex marriage rights.
Hollingsworth is Dennis Hollingsworth, a member of the religious conservative activist group Protect Marriage, whose mission is to protect the definition of marriage as between one man and one woman, and deny marriage rights to same-sex couples on religious grounds. They were proponents of Proposition 8 and helped put it on the 2008 ballot. The question is whether Hollingsworth can be considered a proper party since the outcome will not directly affect him or his organization. They have no interest legally because of the U.S. Constitution’s First Amendment.
So, the Supreme Court starts with strictly procedural arguments before the cases can proceed on the merits, meaning the legal reasons they are coming before the court. Lets assume the court gets to the merits of each case for now.
I hope the outcome of the DOMA ruling is the high court strikes down the definition of marriage clause and allows federal benefits for all legally recognized marriages where ever they exist. It currently defines marriage as strictly between one man and one woman for federal benefits purposes.
Edith Windsor was legally married to her now-deceased wife in Canada, and is suing for her federal rights to exemption of estate taxes and death benefits afforded to surviving spouses. A narrow decision striking the definition clause would give all federal rights to married couples and surviving spouses regardless of sex, and would leave marriage laws and definitions in the states where they have always been.
If the high court takes on redefining marriage for the whole country now, they may uphold DOMA because they are not ready to move forward on this issue. Such a ruling would be negative, but not disastrous, for same-sex married couples because it would not end their marriages or states rights. DOMA only affects federal recognition of marriage.
It would be an easy, narrow ruling to make, kick marriage definition back to the states, and grant all federal rights and benefits to married couples as long as their marriages are legally recognized.
On the Prop 8 case, I hope either they throw it out on Article III procedural grounds, or they strike Prop 8 down as a law applying strictly and narrowly to the state of California. There are enough irregularities in California to allow them to do this.
One issue is California already had equal marriage rights and they were taken away. There are many same-sex couples in California whose marriages are still legally recognized. Prop 8 violates the state constitution’s equal protection and due process articles. It also violates the U.S. Constitution on the same grounds. If some same-sex couples can be legally married, why can’t all of them be legally married?
If the Prop 8 case is thrown out, the ruling originally made by Judge Walker will stand, and Prop 8 will be struck down. If the Supreme Court finds Hollingsworth an improper party, Hollingsworth is also an improper party to the ninth circuit court, and its ruling will also be voided. The only case still standing will be Perry v. Schwarzenegger, the original case.
I know a lot of marriage equality proponents, myself included, would love for the court to rule widely in favor of nationwide marriage equality. I just don’t believe this conservative court would make such a ruling, and the negative consequences are far worse than a narrow ruling or no ruling in both cases.
“The arc of the moral universe is long, but it bends toward justice.” — Dr. Martin Luther King, Jr., Montgomery, AL, 1963
What do you think? What will be thought of this issue in just 10 or 20 years? Please tell us in the comments below.