The beginning of the end of the gay marriage debate?

Ilya Shapiro Senior Fellow in Constitutional Studies, Cato Institute
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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.

The conventional wisdom is that the Court took Perry because it knew it would be striking down DOMA’s Section 3 and wanted to balance that with a ruling going the other way. That split is certainly possible, even likely, but the devil will be in the details. That is, however the Court rules, the issue of whether marriage is a fundamental right that can’t be denied on the basis of sexual orientation may not be reached in either case.

In Windsor, I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships. I could see most if not all of the Court joining such an opinion, even if some of the liberals would get there for different reasons.

In Perry, I could see the Court finding that the Prop 8 proponents lack standing, elaborating on another ballot-proposition case, Arizonans for Official English v. Arizona, which would mean that gay marriage is back in California but not anywhere else. Or the Court could find no valid justification for giving gay couples all the incidents of marriage but withholding that word, which would affect not just California but seven other states that have civil unions that constitute marriage in all but name. (Such a ruling would have the perverse effect of discouraging states from granting “everything but marriage.”) Finally, and less likely in my view, the Court could agree with the Ninth Circuit that Romer controls here, which again would limit the practical effects to California.

And of course, the Court could go the “whole hog,” finding in both cases — in what would almost certainly be stark 5-4 opinions written by Justice Kennedy — that states cannot deny gay couples marriage licenses.

That’s certainly my view — I’d prefer that governments be out of the marriage business altogether but if they’re in it they have to make it available to everyone — though I recognize that such a ruling would create a political maelstrom that the Court may want to avoid.

Happily, unlike the atmosphere surrounding Roe v. Wade, popular opinion on gay marriage is quickly trending in one direction, such that whatever the Court does now — even as its rulings have very real consequences for very real people — isn’t likely to matter in the long run.

For example, a Pew Research Poll taken at the end of October showed that 49% of Americans favored same-sex marriage (with 40% opposed), versus 37% in 2009 and 33% in 2003. Moreover, support among seniors (over age 67) has grown from 23% to 33% since 2009; among baby boomers (ages 48 to 66) from 32% to 41%; among Generation X (ages 32 to 47) from 41% to 51%; and among millennials (ages 18 to 31) from 51% to 64%. George Will was right when he recently said that opposition to gay marriage was “literally dying out.”

Not that it’s a fait accompli, or that there’s merely token opposition, or that we as a nation are already where we’ll be at some point in the future — seeing gay marriage no differently than, say, interracial marriage. Indeed, if you look at the results of the 2012 election, you see that in the four states where gay marriage was on the ballot (and won, for the first time), it did worse than Barack Obama. In Maine, Obama got 56%, while gay marriage got 53%; in Maryland, Obama got 62%, while gay marriage got 52%; in Minnesota, Obama got 53%, while gay marriage got 52%; and in Washington, Obama got 56%, while gay marriage got 52%.

If in these very blue states gay marriage only squeaks by, it’s premature indeed to be triumphant. There may be plenty of libertarian Republicans — and indeed it’s Republican donors and state senators that made all the difference in New York — but there are probably even more populist Democrats.

In sum, there’s yet a long way to go on the road to marriage equality. Even as the cases now before the Supreme Court are historic, what the Court does in June is unlikely to be the end of the line. Larger political dynamics will almost certainly be the real story here; while the Court doesn’t often get ahead of public opinion, it never wants to trail it by too much.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.