The same-sex marriage issue now: Back to the political realm?

The Supreme Court’s now-finished hearings on same-sex marriage have taken their place in the national constitutional debate over the way forward for the latest civil rights movement–the reach for acceptance and legal equality for gays and lesbians. Over the next few weeks, and perhaps longer, the Supreme Court will be discussing in private just what it is going to say to America on that issue.

If the dominant themes that emerged during two historic days of constitutional argument at the court hold true in the end, it would appear that the justices are–more likely than not–going to pass the issue largely back to the political realm, of state legislatures and voter referendums.

Two laws against same-sex marriage, one state and one federal, were being tested in the court’s overcrowded chamber Tuesday and Wednesday, and there was a strong suggestion that neither one of them would survive the test. But that might happen on such narrow grounds that the nation would not know much more about the constitutional rank of gays and lesbians than it did before this week.

Taking stock of where the gay rights movement was before the justices stepped in as constitutional actors, it is clear that the striving for legal equality was advancing, and perhaps at a surprising pace.

The federal ban on gays and lesbians serving openly in the U.S. military, an institution that enjoys special honor and prestige in America, has ended. And more cities around the nation are passing laws to protect homosexuals from discrimination in jobs and life’s other pursuits.

Next month, Colorado will become the ninth state to give same-sex couples virtually all of the benefits of being married, except marriage itself. And campaigns to win the actual right to enter marriage may be approaching success in Illinois and New Mexico, which would make them the 10th and 11th states to do so.

And, with notable frequency, new popular opinion polls suggest that a rising proportion of the population favors increased opportunities and rights for homosexuals, including support for same-sex marriage itself.

On the second day of the court’s hearing on marriage rights, Chief Justice John G. Roberts Jr. made a somewhat sardonic comment, but it was one that took note of the changing political atmosphere. He told a gay rights lawyer arguing against the Defense of Marriage Act: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” He presumably meant not just her side of this particular lawsuit, but her general plea for legal equality.

So, as those hearings unfolded, the question arose: Is the court ready to hand the gay rights campaign a major constitutional victory, a major setback, or something in between? The court had not decided a significant gay rights case in the past decade; the last was a historic decision in 2003 finding a constitutional right of privacy for homosexuals in their private sexual intimacy.

The court stepped back into the debate over gay rights when, in December, it accepted review of the two cases–one on the federal DOMA law from 1996, restricting federal marital benefits to opposite-sex couples, and the other, on California’s Proposition 8 enacted by the state’s voters in 2008, banning marriage for same-sex couples.

Both of those laws, of course, reflected the political reality of their day: The gay rights movement was active then, gaining in some areas, but not making great gains politically. That appeared to have at least begun to change last November. With the marriage equality movement’s first victories at the polls, same-sex marriage became legal in Maine, Maryland, and Washington state.

As nearly four hours of hearings before the justices played out, it appeared that the most likely prospect was that gay rights might well gain, but not sweeping victories. The federal Defense of Marriage Act appeared to be the most vulnerable, but not on a truly broad constitutional basis; it seemed that the court would strike it down, but on the premise that it was an invalid congressional intrusion into a field traditionally controlled by state laws.

If DOMA did fall on that basis, the court would not have decided whether to establish a new and tougher-to-meet constitutional standard for laws treating gays and lesbians less favorably; that calculus is reserved for claims of discrimination, not for arguments about interfering with states’ rights.

And Proposition 8 appeared to be likely to fall, too, but not because the court would expressly strike it down as an unconstitutional violation of equality, but because the justices had concluded that the test of its constitutionality was one that they should not even have taken on at this point. Such a result would leave intact a federal appeals court ruling nullifying Proposition 8 on a basis so narrow that it would apply to California only, and say nothing about laws against same-sex marriage in other states.

If those are the outcomes that are to emerge, when the court decides the two cases before going off on its summer recess, then the justices essentially would have handed back to the democratic process the question: Where do gay rights go from here?

No doubt, other constitutional controversies over the rights of gays and lesbians will be working their way up toward the Supreme Court, but probably not until after the political community has further opportunity to determine at least the short-term prospects for the movement.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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