As 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.
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).
- Jeff Becker
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