Supporters of marriage equality gathered at the Supreme Court as the justices heard the case Hollingsworth v. Perry, a challenge to California's Proposition 8 on Tuesday, March 26, 2013 in Washington, D.C. (Paul Morigi/AP Images for Human Rights Campaign)
The Supreme Court provided constitutional law aficionados with a feast when it heard arguments in two same-sex marriage cases, Hollingsworth v. Perry and United States v. Windsor. At issue, respectively, are Proposition 8, which bans same-sex marriage in California, and the federal Defense of Marriage Act (DOMA), which prohibits federal agencies from recognizing same-sex marriages that are valid under state law. Before the oral arguments, some LGBT rights advocates were hopeful that the Court might issue a broad ruling in the Prop 8 case (Perry) that would legalize same-sex marriages nationwide. Between the rapidly swinging poll numbers in favor of gay marriage, the highly public conversions of politicians like Senators Kay Hagen and Rob Portman, and a formidable array of amicus briefs from Republican backers, business leaders and even NFL players, the momentum seemed to lie with gay rights activists.
The oral arguments made clear, however, that there are not five justices ready to invalidate the roughly forty state laws that prohibit same-sex marriage. Indeed, several justices seemed more concerned with questions about the Court’s jurisdiction than with the individual rights claims raised by Perry. In that case, only those who campaigned to pass Prop 8 in a 2008 referendum are defending it in court; the California governor and attorney general have declined to do so. As a result, Prop 8’s proponents may lack standing, because as private citizens rather than state officials, they face no real burden or obligation if the law is struck down. If they are only bystanders, constitutionally speaking, the Court will be unable to determine the law’s constitutionality because it will lack jurisdiction, and thus the power to decide.
Whatever happens on the question of standing in the Prop 8 case, there may well be five justices who will agree that DOMA is unconstitutional (even if they disagree about why). A ruling that strikes down DOMA will not affect the laws of any state. With DOMA removed, the federal government would defer to each state’s law—as it does now for heterosexual marriages—in assessing whether a person will be recognized as eligible for the package of benefits and burdens that accompanies the status of “married” for purposes of federal laws like those on immigration, taxation and Social Security. So married gay New Yorkers will have the same marital status under both state and federal law.
But gay couples from South Carolina who fly in for the weekend and get married—that question hasn’t been answered yet. More than 1,000 federal provisions differentiate based on marital status, and while many look to the state of a person’s residence to determine which law to apply, that is not necessarily the procedure in each instance. LGBT advocates have introduced legislation that would provide for federal recognition based on either a person’s state of residence or the law of the state where the marriage occurred, but the odds that this bill will pass in this particular Congress seem slim.
How federal recognition would work in practice is just one of the legal complexities that lie ahead no matter how the Court rules in these two cases. There are also challenges to the constitutionality of gay marriage bans in Nevada and Hawaii that have reached the appeals court level, from which either or both may get to the Supreme Court. While there is no guarantee that the Court would accept review of these cases, it will probably have to at least grant or deny certiorari (i.e., decide whether to decide).
More prosaically, like all other married couples, same-sex spouses often move across state lines, sometimes decide to divorce, and inevitably die. It is in the context of these three life events that courts are most often called upon to determine the legal validity of a marriage. And it now seems likely that, one way or another, California (by judicial ruling or a referendum to repeal Prop 8) and Illinois (by legislation) will soon allow gay couples to marry. When that occurs, roughly one-third of the US population will reside in a state where gay marriage is legal. Not surprisingly, these states have a higher population of LGBT people, which means a likely substantial increase in the number of married same-sex couples and thus in the number who will be moving, divorcing and dying. And that will mean more litigation.
The justices can only delay the day of reckoning for so long. Ultimately, the acceptance of what the lawyer defending Prop 8 called “genderless” marriage will move the law closer to an acknowledgment of what has long been social reality: that adults partner and raise children, or not, in a wide variety of household formations. There are networks of interdependence that are essential to millions of people, yet many do not fall within a recognized legal status. Maybe when the gay marriage question is finally settled, we can change the law to provide protections for every person’s family.
Nan Hunter has been following the marriage equality debate closely over the years. In 2012, she wrote on the last year's overruling of California's anti-gay marriage Proposition 8.