The beginning of the end of the gay marriage debate?

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Ilya Shapiro
Senior Fellow in Constitutional Studies, Cato Institute
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      Ilya Shapiro

      Ilya Shapiro is a senior fellow in constitutional studies at the <a href="http://www.cato.org/">Cato Institute</a> and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was Special Assistant/Advisor to the Multi-National Force-Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs LLP and Cleary Gottlieb LLP.

      Shapiro has contributed to a variety of academic, popular, and professional publications, including the L.A. Times, Washington Times, Weekly Standard, Roll Call, National Review Online, and from 2004 to 2007 wrote the "Dispatches from Purple America" column for TCS Daily.com. He also regularly provides commentary on a host of legal and political issues for various TV and radio outlets, including Fox News, CBS, WGN, Voice of America, and American Public Media's "Marketplace."

      He is also an adjunct professor at The George Washington University Law School and lectures regularly on behalf of the Federalist Society, The Fund for American Studies, and other educational and professional groups. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit, while living in Mississippi and traveling around the Deep South. He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.

It’s not clear whether the Supreme Court’s recent decision to review two gay marriage-related cases heralds the beginning of the end of the national debate on this issue, the end of the beginning, or something completely different. That’s because the possible rulings that we expect in June range from requiring all states to recognize gay marriage to no merits opinion but plenty of new rules about who gets to appear in court.

To review, here are the two cases that the Court will consider, along with the specific legal issues in play:

United States v. Windsor. This case involves a New York woman who had to pay a significant federal estate tax on money she inherited from her same-sex spouse because the Defense of Marriage Act prevents the federal government from recognizing such marriages. The Second Circuit found the relevant part of DOMA, Section 3, unconstitutional, as has the First Circuit in unrelated cases. The Supreme Court will thus consider (1) whether Section 3 violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to gay people who are legally married under state law. Because the federal government now agrees with the lower courts that have struck down Section 3, however, the Court will first have to decide (2) whether it even has jurisdiction to consider the matter further and (3) whether the U.S. House’s Bipartisan Legal Advisory Group, which stepped in to defend DOMA, has standing to do so.

Hollingsworth v. Perry. This is the Proposition 8 case out of California, where the Ninth Circuit struck down a state constitutional amendment that limited marriage to the union of a man and a woman. The Supreme Court will thus consider (4) whether the Fourteenth Amendment’s Equal Protection Clause prohibits such a limitation, with its ruling presumably turning on the level of “scrutiny” courts are to give laws that discriminate based on sexual orientation — whether Prop 8’s defenders offer a “rational basis” or a “compelling reason” for maintaining the traditional definition of marriage. But, as with the DOMA case, before the Court can reach that question, it will have to determine (5) whether the Prop 8 proponents, who stepped in after California’s governor and attorney general declined to defend the law, have standing to do so.

While most observers were expecting the Court to take up either Windsor or one of the other DOMA cases that had come to its doorstep — that typically happens when a lower court strikes down a federal law — it was a bit of a surprise that the justices decided to enter the Prop 8 thicket. The Ninth Circuit, in a cagey opinion by liberal lion Judge Stephen Reinhardt, refrained from finding a constitutional right to gay marriage, instead striking down Prop 8 because California had briefly allowed such marriages and then took away that right, serving only to “lessen the status and dignity of gays and lesbians in California.” This taking away of a previously granted right, the court reasoned, made the case similar to Romer v. Evans, a 1996 Supreme Court ruling against Colorado’s attempt to dismantle laws protecting gays from discrimination.

Clearly, Reinhardt — whose opinions the Supreme Court frequently reverses, often unanimously — wanted to keep this case away from the high court. Even the challengers’ odd-couple super-lawyers Ted Olson and David Boies — who had engineered this case with a view to the Supreme Court — reluctantly filed a brief advising the Court not to take it.

The Court, wary of making divisive legal rulings while an issue’s politics are still in turmoil — see Roe v. Wade, which short-circuited debate and left abortion as an open wound on the body politic — thus had go-to reasons for ducking gay marriage if it thought it politically imprudent to confront the issue just yet.