The U.S. Supreme Court on Tuesday and Wednesday will confront two distinct gay marriage cases, which together pose some very sensitive questions. Here’s a rundown.
Q. What are the cases?
A. On Tuesday morning, the court has scheduled 60 minutes of oral argument in Hollingsworth v. Perry. This involves a challenge to California’s Proposition 8, a state constitutional amendment prohibiting same-sex marriages that voters adopted in 2008. Opponents challenged the law and a federal appeals court eventually ruled it to be unconstitutional. Supporters asked for the Supreme Court to review the ruling.
On Wednesday morning, the court has scheduled an unusually long 110 minutes of argument in United States v. Windsor. This case challenges the federal Defense of Marriage Act, a 1996 law that prohibits myriad federal benefits from going to gay married couples.
Q. Will the court decide whether the Constitution guarantees a right to same-sex marriage?
A. Not necessarily.
The court’s nine justices have a wide spectrum of potential choices. They can punt in the Proposition 8 case, by deciding that the conservatives who support the ballot measure lack the standing to take legal action. That would leave intact the appellate court decision striking down Proposition 8, though with some uncertain long-term consequences.
Alternatively, the justices could rule very narrowly, in a way that confines the decision only to California couples, or possibly to couples in several other states, as well.
Or, the justices could issue a sweeping ruling that the Constitution protects – or doesn’t protect – individual rights nationwide to enter into a same-sex marriage.
Q. But how could the justices confine their ruling to California? This is the U.S. Supreme Court, after all.
A. The court could follow the lead of the 9th U.S. Circuit Court of Appeals, which struck down Proposition 8 for a very state-specific reason. The California Supreme Court in May 2008 had recognized same-sex marriage rights, and then voters removed those rights in November 2008 by approving the ballot measure.
The federal appellate court, stressing the “unique and strictly limited” nature of its ruling, concluded in February 2012 that “the people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.” The Supreme Court could follow suit.
Q. Could the court ruling affect more than California, but still not immediately cover all 50 states?
A. Yes.
The Obama administration has proposed what some call the “eight-state solution.” This legally deft proposal urges the court to protect same-sex marriage specifically in the eight states that ban gay marriages, but which accept gay civil unions.
Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island, like California, recognize civil unions, but not gay marriages. The Obama administration argues that this contrast violates constitutional guarantees of equal protection, given how marriage “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”
Q. What’s the Defense of Marriage Act case about?
A. It’s about whether Congress can deny federal benefits to same-sex couples who are married under state law.
The provision in question denies same-sex couples access to an estimated 1,100 benefits afforded other married couples. These range from the ability to file joint tax returns to sharing health insurance.
The question facing the court is whether this denial of benefits to one class of people violates constitutional guarantees of equal protection.
Q. Who is Windsor in the Defense of Marriage Act case, and who is Perry in the Proposition 8 case, and why are they involved?
A. Lawyers like to put a sympathetic human face on their big legal challenges. Edith S. Windsor and Kristin M. Perry fulfill that role.
Windsor was an IBM computer programmer who fell in love with another woman, a psychologist, in 1963. They moved in together in 1967 and remained a couple until the other woman died in 2009. The women married in Canada in 2007, but the Defense of Marriage Act prohibited Windsor from receiving married estate tax advantages; consequently, she had to pay $363,053 in estate taxes.
Perry and her same-sex partner live in Berkeley, Calif., where they have raised four children. They were denied a marriage license in 2009 because of the Proposition 8 ban.
During a 2010 trial, Perry testified, “I’m a 45-year-old woman. I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.”
Q. What are “levels of scrutiny,” which get talked about lot with these cases?
A. It’s about how much leeway the Supreme Court will give legislation.
The high court subjects laws and policies that potentially discriminate by race or national origin to “strict scrutiny.” This is a tough standard, meaning the law must be narrowly tailored to meet a compelling government interest.
The court applies “intermediate” or “exacting” scrutiny to laws that potentially discriminate by gender. These laws must be substantially related to an important government interest.
The lowest level of “rational basis” scrutiny often ends up as a green light, testing simply whether the law is rationally related to a legitimate government purpose.
Proposition 8 opponents argue the measure fails to even meet the low rational basis standard, though some, including the Obama administration, argue further that the court should recognize for the first time a “heightened level of scrutiny” for laws affecting gender orientation.
Q. Let’s go back another step. What’s standing?
A. It’s the key to the courthouse door.
Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have a significant interest in the controversy and must have either suffered an injury or face an imminent threat of injury.
California state officials declined to defend the same-sex marriage ban. Instead, a conservative former Southern California state legislator named Dennis Hollingsworth and allies are arguing on the proposition’s behalf.
Proposition 8 opponents argue in a brief that Hollingsworth and his allies “have never once suggested that permitting same-sex couples to marry could harm them, or anyone else, personally.” Hollingsworth counters that the California Supreme Court concluded, and the 9th U.S. Circuit Court of Appeals accepted the fact, that the opponents are “authorized” to step in since the state stepped out.
Q. Does the Defense of Marriage Act have the same standing issue?
A. Basically, yes. The court will spend 50 minutes on Wednesday addressing the issue, at least in part.
Much as California did with Proposition 8, the Obama administration stopped defending the Defense of Marriage Act. Instead, House Republicans have funded a multimillion-dollar defense of the law. The Obama administration in a legal brief declares that the authority to defend a federal law in court “belongs to the executive branch alone.”
Q. Let me guess: Justice Anthony Kennedy is the swing vote, right?
A. Very possibly.
A generally conservative Republican appointee, Kennedy has nonetheless written several high-profile opinions upholding gay rights. In 1996, he wrote a decision striking down a Colorado ballot measure that banned recognizing gay individuals as a legally protected class. In 2003, he wrote a decision striking down a Texas anti-sodomy statute.
Justices Clarence Thomas and Antonin Scalia both opposed Kennedy on the Colorado and Texas cases. Chief Justice John Roberts Jr. and Justice Samuel Alito were not on the court at the time but are generally reliable conservative votes as well – though Roberts surprised many in upholding the Obama administration’s health care law. That makes him another one to watch closely on these cases.
Justices Stephen Breyer and Ruth Bader Ginsburg sided with Kennedy in both cases. Justices Sonia Sotomayor and Elena Kagan were not on the court at the time, but the Democratic appointees appear likely to be sympathetic to gay marriage.
Q. Will these historic arguments be televised?
A. No.
The Supreme Court does not allow television cameras. Instead, the court will be releasing the transcript and an audio recording of the oral arguments. They will be available on the court’s website, www.supremecourt.gov, by 1 p.m. Tuesday and 2 p.m. Wednesday. C-SPAN will also be airing the audio.
Q. When will the court issue its decisions?
A. Probably the last week of June.