Where Does the Court Go From Here?

Wednesday’s victories for equality in the two marriage cases are very important but they are also very limited. The DOMA ruling forces the federal government to recognize same-sex marriages performed in states that allow them but does nothing to overturn the bans on the practice in more than 30 states. Nor does the Prop 8 ruling. So where does the court go from here? All the way to equality, almost certainly, at some point in the future.

But for now, it’s clear that the court is being relatively cautious. They could have gone all the way to full marriage equality nationwide and much of the rhetoric in Justice Kennedy’s ruling in DOMA could easily have been used in a ruling doing that. The logic and language of his opinion leads inexorably to the conclusion that prohibiting same-sex marriage is a violation of the equal protection clause; the only reason he didn’t go all the way there at this point is the federalism angle in the ruling. But he certainly could have done so and gotten the same 5-4 coalition to go there. So why didn’t he?

Gabriel Arana suggests that the justices “have little desire to get too far ahead of public opinion.” This is a longstanding pattern of the court. They did not invalidate state laws against interracial marriage until more than 25 states had repealed theirs, for instance. So they opted to punt on the Prop 8 case and keep its effect limited and opted to go with a federalism decision on DOMA, again to avoid going too far. And this has been the plan all along:

According to advocates at the major gay-rights organizations, the game plan for winning marriage equality nationwide has long been to achieve a “critical mass” of state recognition for gay marriage, then turn to the federal courts to fill out the rest of the map. While the DOMA ruling is a step forward on the federal level, there remains a patchwork of state laws banning same-sex marriage in place. Gay-rights advocates say the Supreme Court will ultimately have to intervene again. “It’s hard to conceive of getting marriage-equality nationwide without court intervention,” says Brian Mouton, legal director for the Human Rights Campaign, the country’s largest gay rights advocacy organization. “We’ll return to the Supreme Court with more states, more public support, and more momentum on our side,” adds Evan Wolfson, executive director of Freedom to Marry.

And Linda Hirshman argues that it is all but inevitable that the court will go all the way on this issue at some point in one of those cases:

The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem. But the language of Windsor foretells that when the court does poke its heads over the trench it will be to make the final charge toward victory.

There are a bunch of cases working their way up that involve direct challenges to state bans on same-sex marriage, cases that don’t have convenient ways for the court to avoid ruling on that core question. And the court can only duck them for so long. As I’ve predicted for the last couple years, I think we’re going to see in 2014 and 2016 a handful of states repeal the bans on same-sex marriage they passed in 2004 and 2006. Once that happens, the critical mass that equality advocates have been seeking starts to become a reality.

It took the court 17 years to go from upholding state sodomy laws in Bower to overturning them in Lawrence. But the pace of change is much faster today in the age of social media, both in terms of public opinion and political considerations. I predict that marriage equality will be a nationwide reality, ordered by the Supreme Court, within 8 years.

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  • John Pieret

    Sneaking up on controvesial issues for over 200 years …

  • slc1

    As evidence that the Prop. 8 proponents plan to go down fighting every inch of the way, they have filed an action at the SCOTUS asking for it to overrule the 9th Circuit’s withdrawing the stay that was imposed on Judge Walker’s ruling at the District Court level. Just a stalling tactic in the hope that something will turn up. The legal beagles view is that their chances of convincing Justice Kennedy to halt same sex marriages in California are slim and none and slim is on the bus headed out of town.


  • John Pieret


    See SCOTUSblog as well.


    This is just the sort of petulant foot-stamping that will further convince Americans that the religious right are, what they are: irrational homophobes.

  • Where do they go from here? Two words: Fall wedding. Scalia’s been waiting for ages for Breyer to make an honest man out of him.

  • garnetstar

    Isn’t “not getting too far ahead of public opinion” something they ought not to be considering? Isn’t it actually illegal of them, I mean, not following their mandate as a court?

    If they decide that something is a fundamental right, like having equal protection under the law, are they allowed to effectively say to the plaintiff(s) “Yes, your rights are being violated, but just wait a while until enough people, in our opinion, think it’s OK for you to exercise that right. Just go ahead living unequal until the majority thinks its OK. Because, we don’t want to upset them!”

    I think Kennedy’s opinion in DOMA clearly states that marriage is a right. Did you see in Scalia’s dissent where he actually wrote that argument for them? He just crossed out “DOMA” and “the federal government” and replaced that with “the state government”. He said that the language of their opinion could as well be used to declare that denial of marriage by the states was unconstutional. And, for once (miracles never cease), he is correct. (I hope that when their marriage decision comes down, they use Scalia’s exact text.)

    Their duty under their oaths is to declare that now, isn’t it? Since when has “public opinion” been a basis for jurisprudence, or for denial of rights to some citizens?

  • slc1

    Re gamestar @ #5

    Attached is a link to hack columnist Charles Krauthammer opining something along those lines, namely that the DOMA decision is merely the warmup to a more sweeping decision on SSM.


  • tomh

    I predict that marriage equality will be a nationwide reality, ordered by the Supreme Court, within 8 years.

    I would predict that it’s completely dependent on the makeup of the Court at the time. A Republican president, elected in 2016 and 2020 could easily replace Ginsburg and Breyer, for instance, with two Scalia-wing votes. This would set marriage equality back twenty years or so. This Court is obviously not ready to take up the question, since the day after the deciscion they refused to take on the case from Nevada that was a direct challenge to the Nevada constitutional amendment defining marriage as a man and woman.

  • whheydt

    The request for an emergency stay probably needs a whole article of its own from Ed….

    I’ve been expecting to see a case in which an SSM couple move from a state that permits SSM to a state that doesn’t and sues to be treated as married under the “full faith and credit” clause, as well as a challenge to DOMA Sect. 2 being unconstitutional for appearing to allow that clause to be violated at will by states.

    On the request for an emergency stay… Remember that part of the opinion was that the Prop. 8 backers lacked standing not only because they were not the government entity that would normally enforce the law, but *also* because they couldn’t show that they would be harmed if Prop. 8 were overturned.

    They *still* can’t show that they would be harmed if SSM is allowed, even temporarily. And possibly more important for a short-term stay, they can’t show irreparable harm. The direct evidence for that is that there were some 18,000 SSmarriages performed in California between the State Supreme Court’s ruling that SSM were legal under the state constitution and the passage of Prop. 8. No effort was made to nullify those marriages, so–clearly–the backers of Prop.8 were okay with those marriages and suffered no harm from them–and they knew it.

    So while any action before SCOTUS is a crap shoot, logic suggests that the Prop. 8 backers are going down in flames. Again.

  • whheydt

    Re: tomh @ #7

    I would expect that Nevada will reverse course simply because barring SSM will eat into the money they make from “quickie:” marriages. A big chunk of the LGBT community will flock to California to get married and bypass Nevada. There is money to be made…and one can’t let the state constitution stand in the way of *that*.

  • dingojack

    whheydt – what, you mean one cannot serve both god and mammon?* 😉



    * of course if it were Utah it’d be ‘god & mormon’

  • magistramarla

    I think that the request for an emergency stay by the Prop 8 supporters stems from the fact that California is such a huge economy with such a huge influence on the county’s economy. They are desperately trying to keep some conservative influence in that very blue and liberal state. They realize that once SSM becomes the norm there and begins to play a big part in the improvement of the California economy (as whheydt mentioned in #9), it will have a snowball effect on other states.

  • garnetstar

    Re sic1 @ #6,

    Wow, Charles Krauthammer is also correct? What’s the occasion?

  • slc1

    This just in, Justice Kennedy denied the request for an emergency stay, as was predicted. I’m sure that the Prop. 8 proponents have other shenanigans up their sleeves to stall. At this point, what else can they do.


  • slc1

    Re garnetstar @ #12

    Remember the old saw about stopped clocks.

  • Eric Ressner

    As I understand it, the DOMA decision applies only to states that allow same-sex marriage, not civil unions. So those states that offered civil unions as a “completely equivalent” form of commitment for same-sex couples now find that it’s not equivalent at all.

    Did SCOTUS intentionally exclude civil unions from their decision? knowing that the intent of civil-union laws was to be marriage-without-actually-using-that-word? Seems a little passive-aggressive to me.

  • hunter

    @ Eric Ressner:

    Actually, according to reports I’ve seen, for federal employees at least it doesn’t matter where they live. http://americablog.com/2013/06/and-the-benefits-for-married-gay-federal-employees-begin.html Ditto for service members. And given that the first married binational couple awarded a green card for the non-US spouse live in Florida, I suspect the administration will start extending SS benefits, etc., on the same basis.

  • drr1

    In addition to the fact that the Court doesn’t like to be on the leading edge of social change, I suspect Justice Kennedy would also say that the political process is working to bend the arc of history toward marriage equality. True, it may not be happening as quickly as we’d like, but that’s the nature of the political process. So long as that process continues to work, Justice Kennedy will be content to sit on the sidelines and watch. Once we get to a tipping point – 30 states, or 35 or 40 states – then the Court will step in with a Loving-style opinion to bring the rest of the nation kicking and screaming into the 21st century.

  • tomh

    @ #15

    You are right that the DOMA decision only applies to those who are legally married. Same sex couples who have entered into civil unions, in the four states that offer them, or domestic partnerships in three other states, may be fully eligible for state benefits but are not eligible for any of the 1100 plus federal benefits that married couples are privy to. So, as you say, it’s obvious that civil unions are no longer equivalent to marriage.