Why the Supreme Court May Not Recognize Same-Gender Marriage

Why is SCOTUS hesitant to allow same-gender couples the right to marry to supersede states' bans? Here are the factors—and outcomes—that could sway justices' decisions.

Public opinion polls show Americans increasingly support same-gender marriage. But the Supreme Court justices are waffling, according to yesterday's oral arguments on California's Proposition 8. The 80-minute debate not only left judges in a stalemate on whether same-gender marriage was a constitutional right or a legislative decision best left up to the states to decide but they were debating whether the case is even valid enough to be heard in court.

Legal and political experts say that the Supreme Court's hesitation stems from the idea of creating monumental changes to societal practices in one fell swoop. "There was a genuine concern about going too far, too fast," says Charles Fried, a Harvard Law School professor and former President Ronald Reagan's solicitor general. "I sensed a genuine regret that the court had this case before it now."

The Supreme Court's oral arguments this week on Prop 8 and the Defense of Marriage Act (DOMA) mark a historic event—it's the first time in history the justices will hear arguments for cases advocating same-gender marriage. Their decisions could have sweeping impacts on the definition of marriage in the United States: a positive ruling could finally grant same-gender couples the right to wed nationally, affording same-gender couples equitable financial and tax benefits as heterosexual couples.

But is America really not ready for same-gender marriage to be recognized nationally? Reactions to the Supreme Court's debate indicate that the public may feel the judges are just too old to "get it": "Supreme Court Justices have entirely too much power. And some of them are too old to make decisions about a changing world," tweeted Black American Author Terry McMillan, voicing similar sentiments expressed by Major League Baseball Player José Canseco Capas, Jr., and other social-media users.

The rising support for same-gender marriage, however, is not simply a generational issue—it's reflective of shifting American views of LGBT rights. Fifty-three percent of Americans in 2012 (up 32.5 percent from 2009) agree that same-gender couples should receive the same federal benefits as their heterosexual counterparts, according to a USA Today poll.

Opinions on same-gender marriage show increasingly positive long-term trends at an accelerated rate, according to PollingReport.com data cited by The New York Times.

But will increased public support have any affect on the high court's decision?

Obama, Corporations Lean on Supreme Court

Increasing pressure and advocacy for same-gender marriage from high-profile politicians—including President Obama's administration and more than 100 GOP leaders—corporations, and new legislation—such as the Pentagon's decision to issue same-gender couple benefits—had many legal experts anticipating a victory for LGBT-rights supporters.

Amicus "friend of the court" briefs were filed to the Supreme Court, petitioning the justices to strike down Prop 8 and DOMA. Among corporations included on the brief were DiversityInc Top 50 companies Aetna, Ernst & Young, Johnson & Johnson, Marriott International, as well as Blue Cross Blue Shield of Massachusetts, Boehringer Ingelheim, Boston Scientific, Exelon, MassMutual, The McGraw-Hill Companies, Microsoft, New York Life, The Ogilvy Group, Pfizer, State Street Corporation, The Walt Disney Company and Xerox.

Additionally, the Howard University School of Law's Civil Rights Clinic filed its own amicus brief, which compared Prop 8, DOMA and similar anti-same-gender-marriage bans with Jim-Crow era laws that prohibited interracial marriage and reinforced continuing discrimination against Blacks.

Developing Same-Gender-Marriage Arguments: Prop 8 & DOMA

With hearings underway, the nine Supreme Court justices reportedly have been wrestling with Prop 8, first arguing over the case's legal standing in court and also tackling LGBT-related issues including  the definition of marriage, political consensus behind the movement, the consequences of raising children in a same-gender-couple home and the historical legalities of LGBT relationships.

"The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters … it is a cliff," Justice Anthony Kennedy, the anticipated swing vote, said. "You're doing so in a case where the opinion is very narrow. Basically that once the state goes halfway, it has to go all the way or 70 percent of the way … I just wonder if the case was properly granted."

"Traditional marriage has been around for thousands of years," said Justice Samuel Alito, indicating arguments to uphold bans against same-gender marriage. "Same-sex marriage is very new … And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe."

The comments from the judges fall true-to-form with The New York Times' Adam Liptak's predictions: "The decisions will almost certainly be closely divided. Even justices who agree about the right outcome may disagree about rationales … The only remotely plausible unanimous decision is dismissal on standing grounds in the Proposition 8 case."

Despite the seemingly negative stance of several of the Supreme Court justices, Liptak indicates that there is still hope for the same-gender-marriage movement. "Be that as it may, practitioners and justices say it is the rare oral argument that wins or loses a case," he wrote.

5 Potential Outcomes: How Will the Supreme Court Rule?

Arguments to uphold the bans still have strong backers, in particular is Supreme Court Justice Anthony Kennedy, who has been labeled as the "swing vote" in both cases. Kennedy previously voiced his hesitations toward backing pro-same-gender-marriage legislations, noting his belief that "a democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say."

According to CBS News, there are five possible outcomes of the cases:

  1. Same-gender marriage is constitutional: Marriage for all couples would be recognized as a right and same-gender marriage finally would be recognized by the federal government. This would also override locally held bans against same-gender marriage in 39 states.
  2. Same-gender marriage is not a constitutional right. This would set a large roadblock for the LGBT-rights movement, however, states would still be able to afford LGBT-couples the right to marry.
  3. Marriage and civil unions are equivalent. Obama's Administration has levied an argument that same-gender marriage should be extended to states currently recognizing civil unions and domestic partnerships, giving these couples essentially equivalent rights as heterosexual, married couples. The difference would remain in the terminology.
  4. California's same-gender marriages protected. Prop 8 would officially be ruled as unconstitutional and bans finally and permanently would be revoked.
  5. Cases are dismissed. Amicus briefs have been filed by supporters of Prop 8 claiming the proponents have no standing in court—that the initial trail court case ruling was appropriate and do not have an adverse interest, or had to have been harmed in some way, to continue a lawsuit and to come before the Supreme Court.

"Even if you lose the case, and I think that's very unlikely, you would say that the case has been a success because it's changed public opinion so dramatically," Richard Socarides, a former adviser to President Bill Clinton, told Politico. "It's really unbelievable what a successful communications and litigation strategy has combined to do in such a short time."

Legal experts anticipate decisions on Prop 8 and DOMA to come sometime this summer.

What Would You Pay to Witness the Prop 8, DOMA Strike-Down?

LGBT-rights activists and political enthusiasts lined up for front-row seats: Many have been  rallying and camping outside the courthouse since last week, hoping to be one of the 100 people admitted free access to the courtroom hearings. And news sources report that while seats in the courtroom are free-to-attend, having someone save you a place in the days-long line will cost you upwards of $6,000 a pop.

It's a high price that many are willing to pay: There will be no TV broadcasts, media coverage or digital updates (including Twitter and social media) allowed in the room while the oral arguments are underway. Only a transcript and an audio recording will be released once the arguments have concluded.

Prop 8: Same-Gender Marriage Disputed in California

Although the Supreme Court had struck it down just months earlier, California's Proposition 8 ban against same-gender marriage was voted into law in 2008. Thousands of same-gender couples in the state already had been legally married but others were prevented from doing so. Proposition 8 has since been struck down by two federal courts as unconstitutional. Should the Supreme Court rule against Prop 8?

What is DOMA? A Case for Discrimination Against LGBTs

The Defense of Marriage Act originally was passed by Congress and signed into law by  President Bill Clinton's Administration in 1996: DOMA prevents the recognition of same-gender marriage by the Federal Government. The law was struck down last year by two federal appeals courts: Boston in June 2012 and New York in October, and Windsor v. United States now challenges the law's constitutionality and claims discrimination against LGBTs.

If the Supreme Court rules in favor of the DOMA appeal, same-gender couples in states that recognize same-gender marriage would qualify for the same federal marriage benefits, tax breaks and Social Security survivor benefits that heterosexual married couples are entitled to under the law.

—Stacy Straczynski


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