Back in December, the Supreme Court announced that it would hear a set of cases involving both California’s Proposition 8 and the federal Defense of Marriage Act…today the High Court began the first of two days of arguments over the constitutionality of marriage equality as reported by multiple sources. Setting aside what is actually said today and tomorrow, there are, as Think Progress points out, five different possibilities on how the Court could rule(TP quotes in italics below)….
- A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states… This would have the effect of not only overturning Prop 8 and DOMA but would also invalidate the 30 or so state constitutional bans on same-sex marriage; it could be, in a sense, the Roe v. Wade decision of this generation.
- California Only? The Ninth Circuit proposed a way to strike down Prop 8 while leaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court); the logic of the ruling was thus confined to California. In essence, this would confine the court’s decision to the 9th Circuit, since the Prop 8 case heard in California and the circuit declined to review the trial court’s decision; it would, however, keep existing bans outside the circuit in place for the time being.
- A Constitutional Dodge? In both cases, the Court could potentially rule that it lacks jurisdiction to hear the case, a decision that would cast a cloud of uncertainty over the rights of gay couples. In this instance, the Court could simply say, in effect, that the trial court’s decision remains since the plaintiffs(those seeking to validate Prop 8) lacked constitutional standing to bring the case before the High Court; as in possibility #2, the Ninth Circuit decision would stand and Prop 8 would still be invalidated but for the same reasons as in #2.
- A Conservative Stealth Attack? Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process. This could be the worst of the pro-marriage equality decisions since it would invoke a favored tactic of the Right: using the 10th-Amendment as a cudgel to shatter the modern social-safety net. In effect, a decision of this nature would be a Pyrrhic victory for progressives & liberals: a win for marriage equality at the expense of the social-safety net
- A Loss. Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a severely conservative justice. Equality could lose. With all of the above, let’s not forget that, as Think Progress points out, the Roberts Court is a conservative Court; the same court that gave us Citizens United could very easily rule against marriage equality.
Later on I’ll take a look at how the justices could potentially rule but make no mistake; the reverberations from whatever the Court decides will be felt throughout the United States for years to come.