Gay marriage
Justices Show Reluctance for Broad Marriage Ruling
Two days of arguments on same-sex marriage revealed a Supreme Court uneasy about making sweeping moves on gay rights and holding doubts about whether the cases belonged before the justices at all.
The arguments also brought to life more familiar fissures between the court's liberal and conservative wings. On Wednesday, liberal justices suggested that a 1996 federal law denying benefits to lawfully married same-sex couples was motivated by animus against gays, while Chief Justice John Roberts, a conservative, challenged assertions that gays and lesbians need judicial protection from repressive majorities.
Justice Anthony Kennedy, seen as a pivotal vote, gave gay-marriage proponents some hope by suggesting the 1996 Defense of Marriage Act might infringe on states' rights to make their own marriage rules. That suggested at least five justices—Justice Kennedy plus the court's four liberals—might be ready to strike down the law.
But questions about whether the court could properly hear the case made it hard to predict any outcome.
Decisions are expected by late June on the Defense of Marriage Act case as well as the case the court heard Tuesday on California's 2008 voter initiative prohibiting same-sex marriage.
The arguments highlighted a point in common between the two cases. Normally, federal courts require two adverse parties before they can decide a case. Strikingly, however, both the federal and state governments agree with the plaintiffs that the challenged laws are unconstitutional, and have declined to defend them on appeal.
Other groups have stepped in to defend the laws banning gay marriage—the Republican-controlled U.S. House of Representatives for the Defense of Marriage Act and the private citizens who officially sponsored Proposition 8.
But justices of different ideological stripes were wary of litigants without clear legal standing, even though advocates on both sides were eager for vindication in a roiling culture war.
"I can't think of another instance where that's happened," said Justice Stephen Breyer, a liberal, referring to the House's intervention in the federal marriage law case. "I'm afraid of opening that door."
The Obama administration calls the Defense of Marriage Act unconstitutional, agreeing with the ruling of lower federal courts. Nonetheless, it asked the Supreme Court to approve those rulings, an additional level of review Deputy Solicitor General Sri Srinivasan said reflected the administration's "respect" for the judiciary's role.
Chief Justice Roberts called that stance "totally unprecedented," in one of several remarks criticizing the Obama administration.
If the justices decide that neither the Obama administration nor the House had reason to bring the federal marriage case before the high court, that would keep in place two lower-court rulings nullifying the law.
Although it would create no precedent on sexual-orientation discrimination, such an outcome likely would lead the Obama administration to cease enforcement of the Defense of Marriage Act, effectively extending federal marriage benefits to same-sex spouses in states that recognize such status, currently nine plus the District of Columbia, as well as for spouses of federal employees. Moreover, more than 1,000 federal laws in some way affect people based on marital status.
A similar outcome in the Proposition 8 case, finding that the initiative's sponsors lack standing to appeal a federal district court ruling, would nullify California's gay marriage ban without providing the U.S. Supreme Court's guidance on the core constitutional issues.
(Published by The Wall Street Journal – March 27, 2013)