Home > Applying Political Science, Supreme Court > The Gay Marriage Issue and the Supreme Court Docket

The Gay Marriage Issue and the Supreme Court Docket

The Supreme CourtAs we approach October, it is clear that a critical Constitutional issue is likely to make its way onto the Supreme Court docket in the upcoming term: the issue of gay marriage. This is not surprising since questions surrounding this issue have been slowly winding their way to the Supreme Court for well over a decade. According to Lyle Denniston, by the middle of August there were as many as seven petitions filed with the Supreme Court pertaining to the gay marriage issue (Denniston, Gay marriage cases: Now up to seven 2012a). Denniston claims that these seven petitions can be subdivided into two distinct categories that would present disparate but related constitutional issues the Supreme Court might address. While six of the petitions deal with the constitutionality of critical portions of the Defense of Marriage Act (DOMA – a federal law which only allows heterosexual couples to receive certain federal benefits), the Proposition 8 petition addresses the constitutionality of a voter approved ban on same sex marriage that was passed in California in 2008. The high profile nature of these disputes has prompted a special symposium on SCOTUSblog dealing with gay marriage (see for example Carpenter 2012 and Duncan 2012). On the eve of the Supreme Court’s decision to either accept or reject these cases for oral argument, one might wonder what triggered the disputes in the first place.

Ever since Congress passed DOMA in 1996, stipulating that the federal government only recognized marriage as a union between a man and a women, gay and lesbian groups throughout the country have sought to have DOMA struck down in federal court as a violation of their Equal Protection and Due Process rights under the Constitution. Since another portion of DOMA only allows heterosexual couples to receive critical federal benefits, gays and lesbians have argued in court that they are not being treated equally under federal law. Denniston has pointed out that DOMA will have a profound impact on scores of other federal programs as well, including retirement benefits, social security, federal income tax, and medical leave provisions to name a few (Denniston 2012a). As a result, the stakes in the DOMA petitions could not be higher. If the Supreme Court were to grant review of the DOMA petitions, its ruling would have a wide-ranging impact on countless federal benefit programs.

At the same time, there has been a parallel dispute going on at the state level regarding whether marriage should be defined as a union between a man and a women. Over the past decade, legislatures and courts in the various states have grappled with this issue, and to date only six states recognize same sex marriages while 39 explicitly do not. In the upcoming election in November, the citizens of four more states, namely Maine, Maryland, Minnesota, and Washington, will be asked at the polls whether their respective state should recognize same sex marriage or not (Denniston 2012b). In California, the voters passed Prop. 8 in 2008 which defined marriage as between a man and a woman (it passed by a 52-48 margin). The proposition invalidated an earlier California Supreme Court ruling that determined that a state ban on same sex marriage violated the state Constitution (In re Marriage Cases, 43 Cal. 4th 757 (2008)). Gay and lesbian groups obviously challenged the law, and have won resounding victories in lower federal court.

Although all seven gay marriage petitions for review before the Supreme Court deal with laws that discriminate against homosexuals, according to Denniston only the Prop. 8 case raises the fundamental question of whether same sex couples should have the right to marry, because the homosexual couples that initiated the various discriminatory claims in the various DOMA petitions had already been legally married under state law (Denniston 2012a). What is unique about the California case is that there are gay couples who want to get married in California but have been denied the right to do so by Prop. 8. Some Court watchers believe it is unlikely that the Supreme Court would grant review to both the DOMA and Prop. 8 petitions. So, one burning question for journalists and legal scholars is speculating which of the cases is the Supreme Court more likely to hear during the 2012 judicial term?

Since the Supreme Court obtained almost complete discretion over its own docket in 1988, it has the power to decide almost all the cases it wants to hear in a given year. In order for a case to be heard at the Supreme Court level, scholars have noted that four justices must agree to hear the case, using what is called the “rule of four” for granting certiorari (Baum 2001). Ironically, only a minority of justices on the Court need to agree to review a lower court decision. Having said this, the Court receives thousands of petitions each year, so it can only select a fraction of the cases that are petitioned to it. Sometimes it is difficult to forecast which cases it will hear because scholarship has found that some justices use the cert decision process in a strategic manner in order to block cases from being selected for review by the Court. These defensive cert denials are triggered when a justice believes that either a lower court ruling is correct, or that the other members of the Supreme Court will not rule on the issue in the way they want. This strategic decision making process at the certiorari stage has been studied extensively by judicial scholars, and can throw a monkey wrench into the litigation and appellate plans of plaintiffs and defendants.

So when does the Court grant certiorari? Scholars have found that some of the traditional reasons for granting cert include whether the federal government is petitioning for review in the dispute, whether an important constitutional or federal issue is raised, and whether there are conflicting rulings in lower federal or state courts. In light of these factors, one could forcefully argue that the Court should hear the DOMA set of petitions because they raise important federal and constitutional questions that impact over a 1,000 federal laws or regulations and the federal government is clearly a party to the suit. On the other hand, since various states now have conflicting policies regarding gay marriage, it makes sense that the Court would address once and for all the underlying fundamental question of whether gay couples have a Constitutional right to marry. This implies that the Prop. 8 petition may outweigh the six DOMA ones during the cert stage in the minds of the justice. However, every court watcher knows that justices and judges often take the easiest path to resolve a dispute. The thinking is: why resolve a difficult substantive issue if you do not have to? So even if the Supreme Court agrees to hear the case, it may choose to duck the substantive issue in the case on the basis that the petitioners bringing the Prop. 8 appeal did not actually suffer any harm, and thus lacked standing to be participants in the litigation. Alternatively, the justices of the Supreme Court might only write a brief opinion that simply follows a 1972 summary judgment handed down by the Supreme Court in Baker v. Nelson, 409 US 810 (1972), where it ruled that a Minnesota law limiting marriage to heterosexual couples did not raise a substantial federal question. In August, a federal district judge in Hawaii took just this stance, where he concluded that the 1972 Baker ruling decided this issue and set precedent, stipulating that same sex couples do not have a right to marry (Denniston 2012b). Ultimately, I think the Supreme Court will grant review to the DOMA petitions, postponing the more complicated issue of gay marriage issue to another day. One thing is for certain: regardless of which set of cases the Supreme Court chooses to hear, the legal battle for marriage equality will continue for some time to come.

Works Cited
Baum, Lawrence. 2001. American Courts: Process and Policy. New York: Houghton Mifflin Company.

Baker v. Nelson, 409 US 810 (1972).

Carpenter, D. (2012, September 19). Same-sex marriage symposium: Justice Scalia’s case for gay marriage. Retrieved September 22, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/09/same-sex-marriage-symposium-justice-scalias-constitutional-case-for-gay-marriage/.

Denniston, L. (2012a, August 22). Gay marriage cases: Now up to seven. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/gay-marriage-cases-now-up-to-seven.

Denniston, L. (2012b, August 10). Judge: No right to same-sex marriage. Retrieved August 27, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/08/judge-blocks-same-sex-marriages.

Duncan, W. (2012, September 19). Same-sex marriage symposium: Time for an answer – does the Constitution require same-sex marriage? Retrieved September 22, 2012, from SCOTUSblog: http://www.scotusblog.com/2012/09/same-sex-marriage-symposium-time-for-an-answer-does-the-constitution-require-same-sex-marriage.

In re Marriage Cases, 43 Cal. 4th 757 (2008).

  1. sherie salomonsson
    September 26, 2012 at 1:51 pm

    I think this shows how we as a society focus to much on perception, and I don’t think that it is right for any of us to say that same sex marriage should not be legal. The dispute going on in the state level regarding the definition of marriage as a union between a man and a women does not make it okay to take away a gay couples Constitutional right to marry.
    I don’t understand why the Supreme Court is inclined to grant a review to the DOMA petitions, but not directly address the issue of gay marriage. The Supreme Court shouldn’t be trying to put off the battle of gay marriage. If now isn’t the right time, then when will it ever be?

  2. Lexa Buerer
    September 26, 2012 at 6:45 pm

    I don’t think that the Supreme Court is going to hear any of these cases simply because they don’t want to make a decision on something so controversial unless they absolutely have to. Also, there are thousands of cases that are being brought forth for reveiw by the Supreme Court this year and only eight of them are regarding gay marriage. While many people want this issue settled once and for all I highly doubt that this will be the year that a decision is finally reached.

  3. Jordyn Doyle
    September 26, 2012 at 10:14 pm

    I don’t understand why everyone can’t just be happy that they’re in love? All marriage is is a big ceremony. It doesn’t even officially give you your spouse’s last name. You have to file paperwork to do that.

    But I also believe that this right for homosexuals to be married is protected under the equal protection clause of the constitution.

    However, states can’t force churches to allow gay marriage if they don’t. They can approve marriage by law, but forcing the church to go along with the law is taking the freedoms out of religious practices, which I feel violates the establishment clause of the first amendment in the Bill of Rights.

  4. Jesus Hernandez
    September 26, 2012 at 10:27 pm

    Same sex marriage should not be allowed for the sake of future generations. Often throughout these discussions the welfare of the children is completely avoided. Same sex marriage violates natural laws. A mother and father both serve a valuable purpose in a family regarding to child development and redefining marriage would cripple possibilities of child development mentally. Studies indicate that mothers have a congenital connection that is made present during conception. This connection between the mother and child cannot be authenticated and this bond would cheat the child of a proper development.

    Marriage could definitely not be forced upon religion. That would be the equivalence of a religion dictating other religion guidelines and beliefs; it destroys the purpose of the religion itself since these are not principles that were established through the religion itself.

    Civil marriage is up to state jurisdiction; however, one must look at an issue form all aspects. Including how it effects others around you, without allowing for narcissism to neglect others’ rights.

    • Jesus Hernandez
      September 26, 2012 at 10:29 pm

      *This connection between the mother and child cannot be authentically emulated.

  5. Sam Stodolski
    September 27, 2012 at 6:30 am

    I think one of the biggest problems is defining exactly what marriage is. Is it a civil union between two consenting adults? Is it only seen in a religious context? The problem is that there is no clear definition and states are allowed to come up with their own interpretation. If the Supreme Court were to do anything practical in regards to DOMA and the Prop 8 petitions, it would be to create a legal definition of what “marriage” is.

  6. bklunk
    September 27, 2012 at 7:46 am

    I wonder about the source of Jesus’s claims about parenting. I suspect we could find lots of studies that show that many patterns of parenting result in flourishing children. Surely you aren’t saying that adoptive children are cheated out of the chance for adequate development. Most studies I’m familiar with show that what is needed is two involved parents. The link to gender seems dubious.

  7. Chris Runnels
    September 27, 2012 at 10:48 am

    There is a reason this is such a controversial issue, and that is because there are many different viewpoints and factors to consider. Personally, I think anything that has to do with religion has no place in politics and legal issues, and should be thrown out of the argument completely. Unfortunately, that probably won’t happen. On the other hand, if this obsession with religion and marriage is what is keeping gay couples apart, then why don’t they just settle for a “legal union” and be done with it? It is the same exact thing as a marriage, just without the religion. Liberals always try to make the religious Conservatives out as the bad guys here, but in reality, these gay couples are just being stubborn. Honestly, both sides are to blame for having dragged it out as long as they have, and I wouldn’t be surprised if the Supreme Court doesn’t hear any of these cases. I have to imagine they are about as fed up with the whole thing as I am.

  8. john yonke
    September 27, 2012 at 11:48 am

    As long as same sex marriage and equality cases keep popping up all over the U.S., I think that the issue may be forced to be solved nationally. It is unreasonable to expect the controversy to die down, or for same sex couples advocating for equality to lessen their demands. The battle will draw on until federal law solves the issue. Even then, there will probably still be controversy, but at least there would be less confusion about the issue than there is now.

  9. L.Hira
    October 3, 2012 at 7:07 pm

    Society should have no say in whether or not gay marriage should be legal. People are judgmental and although everyone has their own views and opinions, I think that it is not anybody’s business to stick their noses into something that doesn’t apply to them and is going to affect them in any way. At the end of the day people are going to want to live their own life and I honestly think that’s how it should be. Although the topic of same sex marriage will be on-going the fact that there are gay people in this world who love each other is not going to change and the people and government have no right to take the constitutional right to legally be bound in marriage away.

  10. Monique
    November 7, 2012 at 5:31 pm

    I completely agree with the fact that gay marriage will remain an issue for a while simply because the Supreme Court does not want to make any decisions that they do not have to make. Gay marriage is a complicated matter for so many reasons and I feel that they look at in a sense of if they do not have to deal with it then why would they? As far as the DOMA petitions go, I feel that it has a better chance of being looked at in comparison to gay marriage. Although they may have a better chance, part of me thinks that the supreme court will not hear this as well for the same reason as before. They simply do not want to make a decision on something with such high controversy. Until the day they chose to make a decision instead of putting off something that needs to be done, this will remain a big argument both in the small setting and the bigger setting.

  11. Melissa Blakemore
    November 15, 2012 at 1:47 pm

    I think that if the US Supreme Court was to rule on same-sex marriage I think they will rule in favor of it. There will always be people against same-sex marriage.

  12. Donna
    December 14, 2012 at 7:20 pm

    I dont really like to give my opinion on gay marriage due to the fact that I come from a religious background and I was raised on a biased view. I choose to be indifferent to the issue in terms of my own opinion but I will say that eventually gay marriage will be legalized if its constantly at battle to get it legalized.

  1. October 8, 2012 at 8:58 am

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