Chances are good that in less than a year Americans will be handed definitive answers to several of the biggest legal and constitutional questions now in play in the same-sex marriage debate. Few, if any, will be entirely pleased.
|Participants hold signs supporting traditional marriage in front of the Maryland state Capitol in Annapolis, Md., last January. CNS photo/Peter Lockley
During the term that opens in early October and runs through June 2013, the Supreme Court is expected to rule on one and possibly two current focal points of this controversy — the federal Defense of Marriage Act and California’s Proposition 8.
The marriage defense law, enacted in 1996, declares it a matter of policy that only the marriage of a man and woman is marriage in the eyes of the federal government. Proposition 8 is a voter initiative through which Californians in 2008 made essentially the same determination for their state. The cases before the Supreme Court are appeals from lower federal court decisions overturning both.
Though not impossible, a Supreme Court decision imposing same-sex marriage on the nation is probably not in the cards — at least, not now. But the best opponents can hope for may be some version of a local option formula allowing states to settle the question for themselves. In that case, the big question for the court may be whether or not to require states that don’t permit same-sex marriages to recognize those performed in states that do.
Along with the test taking shape in the Supreme Court, other events even before the court speaks reflect the escalation of this conflict as well as its increasing politicization.
Whether to declare the party’s support for same-sex marriage is on the agenda of the Democratic platform committee when it meets in Detroit Aug. 10-12. The platform drafters are expected to approve, particularly in light of President Barack Obama’s abrupt announcement in May that he and first lady Michelle Obama back the idea while favoring a states’ rights approach.
Speaking June 15 at a White House East Room reception celebrating “LGBT [Lesbian, Gay, Bisexual, Transgender] Pride Month,” Obama said, “Americans may still be evolving when it comes to marriage equality, but as I’ve indicated personally, Michelle and I have made up our minds on this issue.” Americans generally “still have a long way to go, but we will get there,” he added.
Up to now, though, same-sex marriage has been a consistent flop at the ballot box. Last May, voters in North Carolina became the latest to approve a state constitutional ban.
In November, voters in Washington state and Maryland — two states where same-sex marriage laws have been enacted but have not yet gone into effect — will have the opportunity say where they stand. The issue will also be on the ballot in Maine.
Two key decisions
Nevertheless it’s in the Supreme Court that the question now appears to be coming most decisively to a head.
The Defense of Marriage Act case is an appeal from a decision of the U.S. Court of Appeals for the First Circuit in Boston, which held part of the law unconstitutional on the grounds that it denies equal treatment to gay couples married in states where they are permitted to marry.
In an unusual turn of events, the Obama administration took the controversial step of refusing to defend this federal law even though enacted by Congress and signed by President Bill Clinton. Two former attorneys general, Edwin Meese and John Ashcroft, called that “an extreme and unprecedented deviation” from precedent. The U.S. House of Representatives stepped in to defend the law in place of the Justice Department, which normally handles the responsibility.
The Proposition 8 case comes to the Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit in San Francisco.
Early in 2008, the California Supreme Court had ruled 4-3 that same-sex couples had a right to marry in the state. Some 18,000 of them did so in the next five months. But in November, 52 percent of the voters supported Proposition 8’s proposal to amend the state constitution to limit marriage to heterosexual unions.
A U.S. district court judge who himself had a same-sex partner then ruled that this was not permitted under the federal Constitution’s equal protection clause. Last February a three-judge panel of the 9th circuit appeals court similarly ruled against Proposition 8. The full 9th circuit court upheld that decision in June, with three members dissenting.
None of the federal appeals courts in these cases has said same-sex couples have a fundamental constitutional right to marry. And although the Supreme Court could do that if it wished, there is reason to think it won’t.
Several years ago, Justice Ruth Bader Ginsburg, one of the court’s liberal members, spoke critically of the court’s action in legalizing abortion by its Roe v. Wade decision in 1973. Ginsburg, who supports legalized abortion, in effect said the court had rushed things by prematurely imposing a radical pro-abortion policy on a divided nation without the necessary political and cultural debate and thereby setting the stage for continuing social conflict. Minimally, the same thing might be said now concerning the court and same-sex marriage.
Russell Shaw is an OSV contributing editor.