Observers of the Supreme Court have, over the past few months, considered it likely that the Court would decide to tackle the question of the constitutionality of the federal Defense of Marriage Act (DOMA). But more than a few thought it would leave things there, taking the relatively easy way out and ducking the potentially historic implications of the lawsuit against California’s Proposition 8. Instead, Americans will likely get, sooner rather than later, clarity from the nation’s highest court on whether there is a federal constitutional right to same-sex marriage, or whether those who’ve been fighting for that right for decades will have to wait even longer.
On Friday afternoon, the Court announced that it will hear in the current term the main issues in the same-sex-marriage debate, although it did leave itself a way out, saying that it would also consider, in tandem, several procedural issues that could conceivably short-circuit a broader ruling. Arguments in the case would likely take place in late March, with a decision by late June.
Those who follow these matters closely had almost uniformly predicted that the Court would take on the DOMA issue. That it seems to have embraced the Proposition 8 case as well is surprising. That suit was brought by the super-lawyers Ted Olson and David Boies, who argue that the federal Constitution guarantees a right to same-sex marriage, which would be applicable in all fifty states were the Court to adopt the broadest of their arguments. Under Chief Justice John Roberts, the Court has often tried to avoid cases and decisions with these kinds of broad impacts, and in this instance, there were procedural grounds that presented the Court with easy outs, should the Justices have wanted to take them. Had they done so, and let the latest decision regarding the suit stand, they would have made same-sex marriage legal in California, but nowhere else—and, considering that it is already permitted in nine states and the District of Columbia, this might not have been such an unacceptable outcome even for the staunchest of gay marriage’s opponents. Instead, there seems to be support for a decision on the merits of the big issue of the day.
In the DOMA case, which I have written about here before, the Court is being asked to decide whether the government can refuse federal benefits to legally married same-sex couples—those who are permitted to marry in the states where they live. A ruling striking down DOMA would mean only that the federal government has to recognize same-sex marriages from the states that now allow it, but it would not extend the right to marriage to gay couples in any other states. The Proposition 8 case is potentially far broader: a ruling for Olson, Boies, and their plaintiffs would mean that same-sex couples could marry in California—or, possibly, throughout the country. In theory, the Court could strike down DOMA but issue a less expansive ruling on Proposition 8, limiting the effect only to California or ridding themselves of it on procedural grounds. Or, in theory, they could uphold Proposition 8; doing so, while also striking down DOMA—as they are expected to do—would mean saying that there is no federal Constitutional right to same-sex marriage, but that same-sex couples wed in their own states could at least have their marriages recognized by the federal government. Either way, it now looks likely that the Defense of Marriage Act is in serious jeopardy, and that same-sex marriage rights in California at least, if not the entire country, are on the Supreme Court’s table.
On a conference call after the announcement, Olson said that he was “very confident,” and Kris Perry, the lead plaintiff in the case, said that she was “elated,” even though she would have been able to marry her partner, Sandy Stier, in California next week had the Court declined to hear her case. Now they will have to wait, but many other Americans may benefit.
All of this comes exactly one month after the November election, in which, for the first time, gay equality carried the day at the ballot box, with gay-rights advocates winning four ballot measures regarding marriage and electing Wisconsin’s Tammy Baldwin as the first openly gay U.S. senator. And on Wednesday, USA Today and Gallup released a new pollshowing that fifty-three per cent of Americans support same-sex marriage, which is at or close to a record number.
That is a dramatic difference from public opinion sixteen years ago, when the Defense of Marriage Act became law. I was on Bill Clinton’s White House staff when he signed DOMA, and it was a solemn, grave atmosphere in the building that day—but it was what the Administration felt the country demanded. Clinton has since said that he regrets signing the law, and he has endorsed its repeal and fought for the rights of same-sex couples. I’m sure that no one will be more relieved than he if and when the law is declared unconstitutional.