The Marriage Equality Calendar
It now looks very likely that the U.S. Supreme Court will decide before Election Day whether it will consider at least one marriage equality case in its next term. Supreme Court decisions generally come in two stages – first is the decision to consider a case, then after briefing and argument comes a decision on the merits of the case. It is only the first of these that will happen before Election Day 2012.
In Massachusetts v. U.S. Department of Health, the First Circuit Court of Appeals ruled on May 31 that section 3 of the federal Defense of Marriage Act is unconstitutional. Section 3 is the part of DOMA that precludes the federal government from recognizing same-sex marriages, even those that are performed in a state that allows same-sex marriages. Although the losing parties had until August 29 to petition the Supreme Court to consider the case, one of the losers, the House of Representatives, filed a petition early – last Friday – asking the Supreme Court to take the case.
The Obama Administration responded yesterday by filing two DOMA petitions of its own. One petition was in the First Circuit case, seconding the House’s request that the Supreme Court hear the case. The Republican-controlled House of course is asking that the Supreme Court reverse the First Circuit and uphold DOMA, whereas the Obama Administration is asking that the court affirm the First Circuit and rule that state-validated same-sex marriages must be honored by the federal government.
The second petition was filed in a case that hasn’t even been decided yet in an appellate court. The case is Golinski v. Office of Personnel Management, in which a federal trial court ruled that section 3 of DOMA unconstitutionally refuses federal recognition to state-sanctioned same-sex marriages. The Ninth Circuit Court of Appeals agreed to expedite the appeal, and oral argument is scheduled for the week of September 10.
The Obama Administration invoked Rule 11 of the Supreme Court’s rules, which allows the court to consider a case before an appellate court has decided it where “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Responses to all three petitions must be submitted by August 2. Supreme Court rules provide that copies of the papers are distributed to the justices 10 days later. The justices’ first conference of the term is scheduled for September 24, and it is entirely possible that the justices will decide then whether to take the DOMA cases.
SCOTUSblog opines that “the chances are very strong” that the court will accept at least one of the DOMA cases, and I agree. A federal court of appeals, and several federal district courts, have found section 3 of DOMA to be unconstitutional. Both the House of Representatives and the President are saying that the court’s consideration is imperative. And same-sex marriage is an issue of such national importance just now that ducking the case would actually undercut the court’s credibility and legitimacy.
The DOMA cases involve a relatively narrow issue: whether the federal government must honor same-sex marriages that are legal under state law. The broader issue is whether same-sex couples have a constitutional right to marry – that is, whether all states must permit same-sex marriages, not just the six states (and Washington, D.C.) that currently permit them.
The broader issue is potentially brought up in Perry v. Brown. On June 5, the Ninth Circuit Court of Appeals declined to reconsider its earlier ruling that California’s Proposition 8, withdrawing marriage rights from same-sex couples, was unconstitutional. The losing parties in that case have until September 4 to ask the Supreme Court to consider the case. The winning side then has 30 days to respond, and the papers would go to the justices by mid-October.
The trial court in the Perry case squarely decided the broader issue – Judge Walker held that same-sex couples have a constitutionally protected right to marry. But the appellate court went to lengths to limit the import of its decision to states that grant same-sex marriage rights and then take those rights away. Only California has ever done that, and no others are on the horizon.
Theoretically, that makes it less likely that the Supreme Court will agree to consider the Perry case. But I have been skeptical of the narrower ruling. The distinction between a state that takes away same-sex marriage rights and a state that has always denied same-sex marriage rights does not persuade me. If my skepticism is well-founded, the justices will view the Perry case as broadly determining same-sex marriage rights, and will be more likely to agree to hear the case.
Agreeing to decide both the DOMA issue and the broader same-sex marriage issue gives the court some ballast. My prediction is that the court will strike down section 3 of DOMA. I think that Justice Kennedy will join the four liberal justices in this, and possibly Chief Justice Roberts as well. I don’t see Kennedy or Roberts going with the liberals on the broader issue of same-sex marriage rights. Therefore agreeing to decide both issues allows Kennedy (and maybe Roberts) to balance their DOMA ruling with a ruling against broader same-sex marriage rights. The divided rulings would put the dispute where Justices Roberts and Kennedy likely believe it belongs – in the political arena of elections and legislation.
That brings us to the four states that are holding voter referendums on same-sex marriage rights on Election Day, November 6. Maryland and Washington voters will decide whether to allow marriage equality laws to take effect. In both states, marriage equality laws were passed earlier this year, and will take effect unless the voters reject them. Maine voters will decide whether to approve same-sex marriage directly by voter initiative, without legislative action. Minnesota voters will decide whether to write their existing statutory ban on same-sex marriages into the state constitution.
The most recent polling is pretty favorable. Public Policy Polling found in May that Marylanders favor same-sex marriage rights by a margin of 57 to 37 percent. PPP found in June that Washingtonians favor same-sex marriage by 51 – 42. An early March PPP poll of Mainers showed marriage equality supporters outweighing opponents by 54 – 41. (Another polling firm found a slightly larger margin, 58 – 40, at the end of March.) The margin is smallest in Minnesota, where it matters least, because voters there are only deciding whether to put an existing same-sex marriage ban into the state constitution. In June, PPP found Minnesota voters opposed to the constitutional amendment by a margin of 43 – 49.
Public opinion polling chronically overstates actual votes in favor of marriage equality, but the margin in Maryland at least seems like it ought to be sufficient. One of the historical motivations for the Supreme Court intervening on behalf of racial minorities has been the inability of those minorities to vindicate their rights through the regular political processes. Imagine the possibility, although probably remote, that marriage equality advocates win all four states on Election Day. We would have to see whether that would sway any of the justices against intervening on behalf of of same-sex couples and their right to marry.
Conversely, imagine the possibility that three out of four, or even all four, state referendums go against marriage equality – joining the 30 previous state-wide referendums that have unanimously gone against marriage equality. The manifest incapacity of the democratic process to vindicate same-sex marriage rights just might, at some point, push Justice Kennedy to what we must concede would be a radical step: ruling that the United States Constitution guarantees equal marriage rights to same-sex and opposite-sex couples.