Same-Sex Marriage And The Supreme Court:
The Possible Outcomes

Story By: Brian Woodward

Edie Windsor And Thea Spyer-A Love Story

While discussing the Supreme Court cases that involved same-sex marriage, I have discovered that many people did not understand the precise nature of the court proceedings. I will outline the possible outcomes and implications of the two cases that went before the Supreme Court.

Hollingsworth v. Perry:

The case that presents the possibility of having the greatest impact on gay marriage is Hollingsworth v. Perry. This is the case that is considering whether or not Proposition 8, the ballot initiative that reversed the legality of marriage for same-sex couples in California, is constitutional.

It must be noted that there are three separate counsels who gave oral arguments before the Supreme Court. Charles Cooper, on behalf of the petitioners (proponents of Proposition 8), Ted Olson, on behalf of the respondents (those against Proposition 8), and also the Solicitor General Donald Verrilli, for the United States, supporting respondents.

In addition, the Supreme Court grants permission to allow certain parties to file amicus briefs. Amicus briefs are often considered by the court when the case concerns public interest. The briefs often address arguments that are not the focus of those presenting oral arguments, but nonetheless are considered critical to the case. This means that besides the official counsel that is heard in court, arguments are considered from other parties during the Supreme Court’s deliberation.

There are seven distinct ways the court could rule:

If the merits are reached (meaning that the court decides the case meets the constitutional requirements to be adjudicated and a ruling released):

The Nationwide Solutions:

1) The court could rule that Proposition 8 is constitutional. This would allow states to confine marriage to a union between a man and a woman.

2) The court could rule that it is a violation of the equal protections act of the 14th amendment to prevent same-sex couples from marrying. This would essentially legalize same-sex marriage in all 50 states.

The 8 state solution:

3) This is what is promoted by the Obama Administration as represented by his Solicitor General Donald Verrilli. The Court could decide that if a state has decided that gay couples may engage in civil unions, and consequently that they are afforded most of the rights that opposite-sex married couples are that there is no rational reason to deny such couples the status of marriage. The court would find that such statutes were unconstitutional because they were designed to denigrate and disgrace such couples on the basis of their sexual orientation.

The California Only Solution

4) This would be a ruling that applied only to California. It would state that once it grants the right to marry to same-sex couples it cannot revoke that right, which is what Proposition 8 did.

If the case does not reach the merits:

5) Defendants lack standing: The court could determine that the defendants of proposition 8 do not have standing under Article 3 of the Constitution. If they vote that way, the Ninth Circuit’s ruling which found Proposition 8 invalid will be nullified. However, U.S. District Judge Vaughn Walker’s ruling striking down Proposition 8 would stand. This would would once again make it legal for same-sex couples to marry in California.

6) Dismiss as Improvidently Granted: This would mean that the justices decide that it was a mistake to take the case. U.S. District Judge Vaughn Walker as well as the Ninth Circuit both ruled that Proposition 8 was unconstitutional in relationship to California law, so it could be viewed by the court that there is no need to hear the case. Many of the justices seemed to question whether this was the right time to take a case when public opinion was moving quickly in favor of gay marriage. They thought it might be more prudent to let the legislative or referendum process to legalize gay marriage. This differs from ruling there is lack of standing only in that the 9th Circuit’s ruling would stand. However, the result would be the same. Allowance of same-sex marriage would be reinstated in California.

7) Decide to vacate and remand in consideration of Windsor v. United States: The court could vote to vacate due to whatever they decide in the Windsor case. This does not necessarily mean that a majority of the justices would vote this way. It does mean that any judge could vote for this and four others could agree to vacate the Ninth Circuit’s on separate grounds, such as finding the defendant’s do not have standing. This action would result in sending the case back to the Ninth Circuit and allowing same-sex marriage to resume in California.

** Supreme Court expert Tom Goldstein states that there is an unknown: “The puzzle will be what judgment the Court will enter if there are, for example, three votes to dismiss as improvidently granted, two to find no standing, three to reverse, and one to affirm.”

Windsor v. United States:

This case seeks to answer the following as summarized by SCOTUSBLOG.com (one of the preeminent sources for analysis on the Supreme Court) “(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”

The potential outcomes in this care are more straightforward:

1) The court could dismiss the case due to lack of standing or jurisdiction. Dismissal for lack of standing would require the justices finding that the Bipartisan Legal Advisory Group (BLAG) had no right to defend the measure. BLAG is representing the interests of the Republican leaders in the House of Representatives in defending the Defense of Marriage Act. The Justice Department declined to defend the law, although it still enforces it, and BLAG stepped in to defend the law. The justices also questioned whether it should hear the case from the United States, due to the fact that the government supported the lower court’s ruling. A dismissal on either ground would keep the ruling in place for Ms. Windsor but would have no real effect outside of that.

2) If the case reaches the merits, then of course it will either be upheld or struck down: If the law is upheld, which appears to be quite unlikely, it would continue to infringe upon the rights of gay couples in relation to the over 1,100 federal statutes that rely on the federal definition of marriage between one man and one woman. The most likely outcome is that the law will be struck down. It could be struck down as violating 5th amendment rights and as a result preclude any state from banning same-sex marriage. However, the most likely outcome is that it will be struck down but on the basis of federalism issues. This ruling would invalidate DOMA stating that it is a violation of the Constitution to enforce federal statutes concerning marriage because the regulation of marriage is a power held by individual states. It would be a victory for gay marriage removing federal impediments to their pursuit of equality. However, it would not be the far reaching verdict that many are hoping for.