As an old political science major and a bit of a US Supreme Court junkie, I’ve been musing over what it means that the high tribunal has decided to review two cases testing the constitutionality of same-sex marriage. “In agreeing to examine California’s Proposition 8 (Hollingsworth v. Perry) and the federal Defense of Marriage Act (Windsor v. the United States), the court has created a defining moment, not only for its own legacy but for the country as a whole.”
Got that right. But how will they decide? I think one has to look at the specific people represented in the cases, specifically 83-year-old Edith Windsor who moved to New York State 60 years ago. “Ms. Windsor… married her partner, Thea Spyer, in 2007 [in Canada] after a 40-year engagement. [She relishes] the court’s decision to hear her case, a challenge to the 1996 law, the Defense of Marriage Act, which prohibited the Internal Revenue Service from treating her as a surviving spouse after Ms. Spyer’s death in 2009, costing her more than $600,000 in state and federal estate taxes.”
The Court does not rule on abstractions. The Court will decide whether Edith Windsor has been inequitably treated by the laws of the United States and New York, denied equal protection due to all people within its jurisdiction; this would then be applicable to anyone in the same circumstances. The decision then is less about “gay marriage” as a concept, as much as whether someone in a same-sex union shall be afforded all the rights and privileges of a marriage between a man and a woman. I’ve heard bandied about that there are at least 1000 legal perks of being married, among them visitation rights to see a sick spouse in the hospital without having to draw up legal papers for that purpose.
The Proposition 8 case, merged with the Windsor case by the high court, has a more convoluted path to SCOTUS, with the surprising legal pairing of liberal attorney David Boies and conservative lawyer Ted Olson, who were on opposite sides in Bush v. Gore, on the same side, in favor of marriage equality.
The Court could vote to limit same-sex marriage. I seriously doubt it would overturn law in the nine states that have already decided to allow it, especially since three states – Maine, Maryland, and Washington – had voter-approved legalization in November 2012. And at least a plurality of Americans polled now support same-sex marriage. On the other hand, 30 states have constitutional bans against it. Pew has a great breakdown of the issue.
The Court could vote to overturn all same-sex marriage bans in the country. It would not be unprecedented: Loving v. Virginia (1967) not only negated laws against racially mixed marriages in Virginia but in more than a dozen other states. But this would be a radical move by a court that is quite conservative, not only from a political point of view but in temperament. Still, the Court tends to believe in precedent, and it has long determined that “marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” It would be surprising, but not beyond belief, that the Court take this route.
I’m expecting some mishmash decision that would overturn the discrimination as it has been applied in the US tax law and other federal issues, and apply these as well to the states that have decided to allow for marriage equality, and including California, while leaving the other states to decide on it on their own timetable, something like Senator Lindsey Graham of South Carolina is now advocating. I would not at all be surprised by a split decision, with three or four voting to support anti-gay marriage laws in the land, three or four voting to limit or eliminate the laws, and one or two (Kennedy, and maybe Roberts) coming up with some grand compromise that no one will love. One could assume that Scalia is in the former group, since he has recently defended comparing homosexuality to murder, and his political clone Thomas will likely vote the same.
I’d love to hear other opinions about what the Court might do.