|People demonstrate outside the Supreme Court building in Washington, D.C., March 26 as justices hear arguments in a case challenging Proposition 8. CNS photo/Nancy Phelan Wiechec
“Neither Church nor State invented marriage, and neither can change its nature.” Cardinal Francis George, archbishop of Chicago, said that in a column last summer. It raises an interesting question: Does the Supreme Court agree? Americans may soon find out.
Shortly before the Supreme Court’s term ends two-and-a-half months from now, it will decide two cases focusing on same-sex marriage. Central to the first (Hollingsworth v. Perry) is a California voter initiative called Proposition 8 ruling out same-sex marriage in that state. The second case (Windsor v. United States) concerns a section of the federal Defense of Marriage Act extending government recognition only to marriage between a man and a woman.
The Supreme Court accepted the cases last December and heard oral arguments March 26 and 27.
Besides allowing ample time for the airing of issues, scheduling two days for arguments reflects the fact that the result in one case need not determine the outcome in the other. For example, depending on the rationale, the court could uphold Proposition 8 while overturning DOMA. The largest question implicitly facing the justices in both cases is whether the U.S. Constitution guarantees same-sex couples a right to marry. But it now seems possible the court will not address that question but will reach its decision on narrower grounds.
Although no one will know where the individual justices stand until their votes are announced in late June, conventional wisdom is that they’re split, with Justice Anthony Kennedy holding, as often before, the tie-breaking swing vote.
During oral arguments, Kennedy and others indicated that a sweeping constitutional ruling might be premature. Addressing counsel for the plaintiff in the Proposition 8 case, Justice Samuel A. Alito said, “You want us to step in and render a decision based on an assessment of the effects of this institution [same-sex marriage], which is newer than cell phones or the Internet? ... We do not have the ability to see the future.”
In that context, the court may simply leave it to states — for now at least — to do as they like on same-sex marriage, an outcome that would probably mean upholding Proposition 8 while striking down DOMA. If so, gay rights groups will begin pressing for a ruling grounding homosexual couples’ right to marry in the Constitution’s Equal Protection clause.
Thirty state constitutions presently contain provisions upholding man-woman marriage. Until last year, voters in every state where the issue was on the ballot rejected same-sex marriage.
Last November, however, voters in Maine, Maryland and Washington state passed initiatives redefining marriage to include same-sex couples, and voters in Minnesota rejected a constitutional amendment defining marriage in heterosexual terms. Gay marriage also is legal in Massachusetts, New York, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia.
The cases now before the Supreme Court are there on appeal from decisions of federal courts overturning anti-gay marriage measures.
Proposition 8, at issue in the Hollingsworth case, was adopted by California voters in November 2008 to amend the state constitution to bar gay marriage. That ballot initiative was a response to a state Supreme Court decision overturning state laws that recognized only man-woman marriage.
Proposition 8 then was struck down by a federal district court judge who later acknowledged he was homosexual. His ruling was upheld — though on narrower grounds — by the 9th Circuit Court of Appeals, because in 2008 the state Supreme Court gave the same-sex couple the right to marry.
California state officials refused to defend Proposition 8 in court, and it was instead defended by private supporters. Representing the homosexual couples who oppose it are prominent Democratic lawyer David Boies and Theodore B. Olson, U.S. solicitor general in the President George W. Bush administration.
The Defense of Marriage Act was adopted by Congress and signed into law by President Bill Clinton in 1996. Section 3, under attack in Windsor, says that for federal government purposes marriage is “a legal union between one man and one woman.” It was challenged by a New York woman who married another New York woman in Canada in 2007. The second woman died in 2009, leaving her property to her partner, whose case against DOMA is that, denied recognition as a surviving spouse, she must pay a large inheritance tax. The 2nd U.S. Circuit Court of Appeals struck down the law’s contested provision last year, in the process granting same-sex couples a higher level of legal protection than they’d previously enjoyed.
DOMA is being defended before the Supreme Court by a bipartisan congressional group since, like the state authorities in California, President Barack Obama’s administration refuses to defend the law, despite its being a legitimately enacted federal statute.
Three weeks before the oral arguments, the Justice Department filed an amicus brief asking the Supreme Court to overturn Proposition 8. After several years of public waffling, President Obama last year said he supports same-sex marriage.
The cases have drawn amicus briefs from many other groups including the U.S. Conference of Catholic Bishops. The USCCB argued that it is reasonable for the government to grant special status to man-woman marriage in light of “both the unique capacity for reproduction and the unique value of homes with a mother and father.”
Russell Shaw is an OSV contributing editor.