Is Marriage Equality Almost Here? Six Possible Outcomes of the DOMA and Prop 8 Cases

The Supreme Court decisions on DOMA and Prop 8 are expected to come down this month. We'll soon find out if the Court has chosen to advance the cause of marriage equality, or if it will it leave it for another day.

Sacramento, California, November 22, 2008: Protest against the passage of Proposition 8. Karin Hildebrand Lau / Shutterstock.com

The Defense of Marriage Act

In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.

But it didn’t, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.

The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.

1. DOMA Is Unconstitutional

Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMA unconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.

If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.

If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law—state or federal—that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn’t mean hope is lost. The Court doesn’t have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it’s DOMA.

There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a “states’ rights” or federalism argument. During oral arguments Justice Anthony Kennedy seemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.

The states’ rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.

2. DOMA Is Constitutional

As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.

3. SCOTUS Punts on the Merits of the Case

If Chief Justice John Roberts is concerned with his legacy and the impact of a decision either embracing or rejecting marriage equality, there is one way the Court could avoid the issue all together: dismiss the challenge for a lack of standing.

Before a party can bring a case in federal court, they must be able to show they have constitutional standing. That means they must be able to show that they have a legal injury before the court can make a substantive decision on the case. United States v. Windsor is a unique case because typically the federal government defends federal law. But in this case the Obama administration agreed that DOMA was unconstitutional and would not defend it. This drove conservatives bonkers, so House Republicans called upon the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to step in and defend DOMA. But Edie Windsor won her case at a lower level, and that means she is no longer injured under the law. So before the merits of Section 3 of DOMA can be decided, the Court must therefore decide whether BLAG’s defense of DOMA is sufficient for the case to move forward—that is, does BLAG have the standing necessary to justify the federal courts exercising its power at this time?

If the Court decides that House Republicans do not have standing to defend it, at a minimum Edie Windsor gets a tax refund of more than $363,000. This outcome would do nothing for marriage equality though, and would not strike down Section 3 of DOMA. To then receive similar benefits as Windsor, all other legally married same-sex couples seeking benefits under federal law would need to bring their own claim of discrimination until DOMA is repealed.

California’s Proposition 8

In May 2008 the California Supreme Court issued a historic ruling, holding that denying same-sex couples the recognition of marriage violated the equal protection clause of the California Constitution. Six months later, and after a massive campaign fueled by religious institutions, just over 50 percent of California voters overruled that decision and passed Proposition 8. The law defines marriage as the union between one man and one woman with no mention of civil unions. Its passage effectively stripped legally married same-sex couples in California of their rights.

After an extensive legal challenge that included a lengthy trial on the merits of Prop 8, a federal district court and a federal appeals court both ruled that the California constitutional amendment violates the due process and equal protection clauses of the U.S. Constitution.

Now, the Supreme Court will decide, in Hollingsworth v. Perry, whether Prop 8 can limit the fundamental right to marry and whether that fundamental right applies regardless of sexual orientation.

1. Proposition 8 Is Unconstitutional

If the Supreme Court were to rule that Proposition 8 is unconstitutional, it would mean at a minimum that LGBTQ couples would be able to marry in California. But how the Court does so is critically important to the scope of the impact of the decision.

There are essentially three main avenues for the Court to come to this conclusion. If the Court were to strike down Proposition 8 using an equal protection analysis under the 14th Amendment, the rationale behind the decision would likely apply to all 50 states. That means that laws prohibiting marriage equality would also fail. This is the broadest possible ruling and one that would be historic in terms of advancing the issue of marriage equality. For that reason alone such a ruling is not likely.

Alternatively, the Court could hold that California was not free to provide same-sex couples with all the benefits and burdens of marriage through civil unions while withholding the designation of “marriage.” This is the outcome suggested by the Obama administration in its amicus brief. Under this reasoning, bans on marriage equality in those states that have “everything but marriage” civil unions or domestic partnerships are unconstitutional. A decision using this rationale would have broader reach but would still not have national impact since it would apply only to the eight states that allow these civil unions: California, Colorado, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Wisconsin.

Finally, the Court could invalidate Prop 8 by ruling that the U.S. Constitution’s due process clause prohibits California from taking away the right to marriage for same-sex couples once that right had been established by the California Supreme Court ruling. If the Court takes this view, the decision would be a narrow application only relevant to California, and marriage equality bans in other states would survive.

2. Prop 8 Is Upheld

For the Supreme Court to find Prop 8 constitutional, it would have to reverse the Ninth Circuit Court of Appeals decision and rule that Prop 8 does not violate the equal protection clause. But there are a lot of procedural hurdles to clear before such a ruling would be possible. The lower courts intentionally avoided this specific issue, so it would be a reach for the Roberts Court to do so. But if it did, then amending or revising the California Constitution via a ballot proposition would be required to undo Prop 8.

3. SCOTUS Avoids the Merits of the Case on Procedural Issues

Similar to the DOMA case, the Court could avoid the substantive issue of marriage equality and deal with the case before it on procedural grounds. One option for the Court is to decide that supporters of Prop 8 were not a proper party to the case because they did not sustain an “injury” under federal law and therefore lacked standing to appeal the lower court’s judgment to strike it down. In this scenario, the decision would only apply to California, the district court decision declaring Prop 8 unconstitutional would stand, and gay and lesbian people would have the right to marry in California.

Finally, the Supreme Court also has the power to effectively change its mind and decide that it was wrong to take the case to begin with. This is an unlikely scenario—and not just because it would mean the Supreme Court justices admitting they were wrong. But it is possible, and if it were to happen then the Ninth Circuit decision declaring Prop 8 unconstitutional will stand, apply only to California, upholding the right of gay and lesbian people to marry in California alone.