This week, as the Supreme Court considers the constitutionality of Prop 8 and DOMA, I’ve heard the following question a lot: “Do you think they’re going to legalize same-sex marriage or strike it down?” My answer is, “Neither.”
There is so much nuance in these cases having to do with centuries of legal analysis, states’ rights and a fair amount of dry legal technicalities, that I doubt that this issue – one that seems so very simple to us – will be decided at all simply.
First, existing same-sex marriage rights will not – indeed, cannot – be struck down. The most the Supremes can do is uphold existing bans and say that the states and the federal government are free to decide on marriage equality for themselves. Pretty much how things are today, only with the blessings of the Court.
There’s also a slim chance that the Supremes will rule that same-sex marriage is lawful across the board. This would mean not only that same-sex marriage rights would be the law of the land, but also that any discrimination on the basis of sexual orientation will now be held to the same rigorous scrutiny as gender discrimination or even racial discrimination.
Court-watchers and I aren’t betting they will go this far. The Supremes have never been fond of being on the cutting edge. For example, in the pivotal cases about racial discrimination (segregation in the ‘50s and interracial marriage in the ‘60s) most states were already clear that such unfounded distinctions between people were wrong. The Court’s ruling affected only the minority of states that were unwilling to get with the program.
But right now, 41 states still limit marriage to heterosexual couples. I would be shocked – albeit thrilled – if they changed this in one fell swoop.
Nope, nothing so tidy. Instead, I think it’s going to come down like this:
They will strike down DOMA, opening the door to federal marriage recognition. Not because of any inequality, but because it smacks of overreach by the federal government into what has always been the domain of the states: marriage. And we all know how much conservatives hate government meddling in state affairs. This last point gives me some perverse pleasure as, for once, I’m in line with my right-wing brothers and sisters on a point of law. (Wait, where are you guys going?)
States will then be free to do what they want with regard to their own marriages, but they may then be compelled to recognize legal marriages of any stripe that happened in other states. Oh, watch the fur fly!
Prop 8 will be overturned too, but the ruling will probably apply only to California. California is unique among states with marriage bans in that it did have real same-sex marriages and then the voters stopped it. In our legal history, there has never been much tolerance for the yanking away of existing rights. In non-legal terms, it’s just mean.
There are a few dark horse possibilities too. First, the Court could punt on one or both of these cases though a technicality called “standing.” This means essentially that the wrong people are parties to the case because they don’t have a direct stake in the outcome, and it would be quite a cop out. I believe the Supremes agreed to hear these cases because they’re ready to address the substantive questions for the first time in our history.
Second, the Court could split the baby by applying Prop 8 to a broader swath of states with laws like California’s, in which all the rights of marriage are accorded except for the name “marriage.” There are currently eight such states, but I think this outcome is also unlikely because it will create a disincentive for states down the road to offer full civil unions (or “marriage in all but name”).
So no, I don’t think we will soon have the satisfaction of knowing that our marriages and our lives have full value under the law. But as laws move forward, so too does public opinion, which has already changed dramatically in the last year alone. It’s not time to celebrate yet, but perhaps starting looking for a fabulous party outfit.
Abby is a civil rights attorney-turned-author who has been in the LGBT rights trenches for 25+ years. She can be reached through her website: queerquestionsstraigh