Whatever the Court Says About Marriage: Carry On

This morning, the Supreme Court will announce its decisions in the two so-called gay marriage cases. Anxiety is high across the nation. Hundreds of people lined up to have a chance to witness the announcement first hand; throngs of activists, spectators, and media will surround the entrance as the nation waits for the marshall to bring the court to order. Whatever happens, these cases are sure to be among the most anticipated, most observed, and most commented-on in the Court’s long history. The weight of the moment is not lost on at least two justices. Chief Justice Roberts has demonstrated a concern with the integrity of the Court as an institution and Justice Anthony Kennedy knows that he is often the deciding vote in the most significant constitutional decisions of the generation.

Before I get into the weeds on what could happen this morning here’s the short of it: the Court could redefine marriage nationwide, or the Court could uphold the people’s right to define marriage as a man-woman pair. Whatever side you’re on in this, you could win or you could lose.

And whatever happens, the sun will still rise and Jesus Christ will still be Lord of history. Take heart, Christians. Marriage is not some social backwater, a field we can afford to surrender as an inconvenient image of bygone morality. We have ignored it too long, even our religious treatment of it focusing on the spiritual attributes and development of the two spouses. We have lost the concepts to understand – and the language to defend – the public purpose of marriage. Weak marriage is the scourge of the modern world, and a black mark on Western culture; it redounds to the harm of children, of families, of cities. Whatever the Court does this morning, we steel ourselves, pray, and carry on to fight for that “honourable estate, instituted of God in the time of man’s innocency, signifying unto us the mystical union that is betwixt Christ and his Church.” To us much has been revealed – we dare not squander it willingly. The cause is worthy of our attention.

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Now, on to the grisly details. For those of you inclined to follow along as the events transpire, click over to SCOTUSblog for the absolute best coverage. (For most, it’s better than being there in person because the bloggers there actually know what’s going on and interpret it in real time.)

Despite the complexity and importance of these cases, the possibilities for each are limited. In either of the two cases, the Court could rule that the Constitution prohibits defining marriage as a man-woman relationship. That would be the most complete victory for the plaintiffs, but, I think, would create a backlash and division unseen since the Civil War. I’m not trying to be dramatic. If the Court tells 313 million people how they must order society, completely removing the choice from their power, I can’t even fathom the reaction of some regions. Some on the left will chalk this up to unbridled hate against homosexuals, comparisons will be made to Democrat Governor Orville Faubus – the fracas will be terrible. Those who maintained high profiles in the case will be held up as icons of love and commitment, oppressed souls whose day has finally come. But forcing a redefinition of marriage will not end oppression of gays – a terrible reality and often a shame of the church – nor will it represent an egalitarian expansion of rights. It will further drive the public understanding of marriage into the incoherent mudpit where it has been burrowing for the past half-century or so while society gets on with its egoization and sentimentalization.

Almost as unlikely, the Court could rule that of course the people can define marriage the way it has been defined in almost every civilization throughout history. It could apply the lenient “rational basis” test and find that it is too much to say that Californians (and over 30 other states, not to mention the aforementioned democracy of the dead) were irrational to think that genderedness is important to realizing the public purposes of marriage – channeling procreative tendencies and promoting the unity of families. Perhaps social data presents challenges to whether that view is correct, but it would be something else to say it is irrational. This would end court challenges to traditional marriage laws for a good while, perhaps indefinitely. After all, if the redefiners are right, it’s only a matter of time before everyone’s on board with the new concept of marriage.

There are a few other possibilities that require getting into the cases some.

One case, Hollingsworth v. Perry,  challenges an amendment to the constitution of California (added by Proposition 8) that defines marriage as between a man and a woman. Some gay couples sued, claiming that such a law unconstitutionally deprived them of the very basic right of marriage. The trial judge agreed and declared the law invalid; the appeals court mostly agreed, but said that at the least a state cannot rescind existing marriages (some people were married there before the amendment passed). The Court could dismiss the case as having been improvidently granted (called a “DIG”), which would probably leave the appeals court ruling in place. The Court could also find that Prop 8’s defenders lack standing, since the Governator (and his successor Jerry Brown) decided not to defend the law. A DIG would probably leave the appeals court ruling in place, leaving other states’ similar amendments in tact but with a questionable future. Lack of standing would probably leave the trial court rule in place, which would be a broader proclamation of a right to gay marriage, but would still only have force in California.

The Court could also introduce a new standard of review to these kinds of cases. It could hold that classifying on the basis of sexual orientation is a type of gender discrimination, and thus entitled to higher scrutiny. Or it could simply hold that sexual orientation is itself a suspect class. Either case would open the floodgates to equal protection lawsuits.

The other case is United States v. Windsor, a challenge to the federal Defense of Marriage Act (DOMA). The challenged part of the law defines marriage as between a man and a woman for purposes of federal law. Edie Windsor is an elderly woman from New York who had to pay hundreds of thousands of dollars in federal inheritance taxes when her partner died. The two had been married in Canada, but DOMA applies to federal marriage law so the relationship did not shield Windsor from the IRS’s forceful grip. It is undisputed that any legislature has the power to define the terms it uses however it wants. Congress can define “dog” as a small outbuilding and “cat” as a wireless internet provider for the purposes of its laws. The argument is that this definition is actually more than just a definition – it is a statement of policy. Some libertarian legal scholars argue that this is actually a violation of federalism, since states retain power over family law.

In this case, the four usually-liberal justices will vote for some variation of DOMA being invalid. The question is whether they can peel off Justice Kennedy or someone else on the federalism ground. Observers (including me) predict DOMA will be struck down but with no majority as to why. This would make it a very limited ruling indeed.