The Supreme Court has known since July that it was going to be confronted this term with a handful of cases on the issue of same-sex marriage. The justices have now taken a close look at the stack before them: 10 different pleas to sort out the constitutionality of three different laws. But, so far, no action. What’s the court doing with those cases?
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When a major issue like this one–important to millions of people (on both sides of the issue), important to constitutional law, and important to America’s attitudes about gay rights–it is easy to grow impatient with a court that seems to want to approach the issue rather cautiously. Indeed, advocacy groups in opposition on this issue have been putting out anxious messages to alert their followers that something may be coming. Outside the courthouse, the TV cameras are expectantly in place.
What is happening inside the court building, though, is a measured–and hopefully, calmer–process. Just as the court, at its last term, took time to sort through the pile of cases on the new federal health care law, the justices and their law clerks are filtering the 10 separate filings on marriage rights. They announced yesterday that they will take at least another few days to do the sorting. The issue is on the agenda for a private meeting of the justices Friday morning.
Although nothing is predictable about this, it does seem at this point that the court will announce its choices on Friday afternoon; there is a desire–if, as expected, some cases are accepted for review–to have the cases set for hearings in March, and the calendar for lawyers to file their written arguments in order to meet that schedule is getting a bit tight.
Among the 10 pleas to the court, there are five main issues, and a handful of side issues, and an underlying question of whether to seek out one or more cases in which all nine justices can plan to take part. Some of the filings involve a decision by a federal appeals court based in Boston, the First Circuit Court of Appeals, and Justice Elena Kagan would not be able to join in any consideration of that case, because she had a role in it at an earlier stage when she was U.S. solicitor general; she has said publicly that she reviewed some of the legal arguments in that case, and that ordinarily is disqualifying for a justice.
The five main issues are:
- Is a one-line decision the court issued in 1972, in the case of Baker v. Nelson, rejecting a claim that barring gay and lesbian couples from marrying is unconstitutional, to be interpreted now as a binding ruling on that point?
- How tough a constitutional test should be applied to judge a law that affects gay rights?
- Did Congress act unconstitutionally in 1996 in passing the federal Defense of Marriage Act, restricting all marital benefits under federal law and regulations to opposite-sex couples?
- Did California’s voters act unconstitutionally in 2008 in voting down a state Supreme Court ruling allowing same-sex marriages?
- Did Arizona’s legislature act unconstitutionally in 2009 in passing a law that restricted marriage benefits for state workers to couples who can marry legally–something that Arizona’s constitution forbids for gays and lesbians?
If the court wants to examine the constitutional questions in both the federal and state contexts, it probably would want to have a mix of Defense of Marriage Act cases and a state case. If it wants to start with only one controversy, it probably would opt to take on the dispute over the Defense of Marriage Act; there, a number of federal courts have struck down the marriage limitation, and the court seldom passes up review when a federal law has been nullified by a lower court.
But does it want to examine that from the perspective of gay and lesbian couples, who in the DOMA cases are already married under state laws but still can’t qualify for federal benefits, or from the perspective of a state that considers the Act to be an invalid intrusion into states’ rights (since states have traditionally controlled the definition of marriage)? If it wants a case involving individuals instead of states, will it take a case in which only one marital benefit is at stake, or several?
If the court wants to start very slowly, it might limit its review to the current status–binding or not?–of its 1972 ruling in the Baker case. In fact, the House of Representatives’ Republican leaders, who have taken up the courthouse defense of DOMA now that the Obama administration has given up that defense, have been arguing that the 40-year-old precedent has settled the issue, and that should be the end of the matter.
If those choices were not complex enough, the justices are having to think about which parties pursuing appeals have a technical right even to be pursuing appeals. And which lawyers for which clients do they want appearing before the court, in what capacity? They may have some arranging of the chairs to do, so to speak, along with a host of other complications.
When the court does act, though, it almost certainly will do so in a way that is easy to understand. Everyone interested in them will know what will be at stake.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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