Richard Socarides puts into context SCOTUS’s decision to hear both the DOMA and Prop 8 cases:
Those who follow these matters closely had almost uniformly predicted that the Court would take on the DOMA issue. That it seems to have embraced the Proposition 8 case as well is surprising. That suit was brought by the super-lawyers Ted Olson and David Boies, who argue that the federal Constitution guarantees a right to same-sex marriage, which would be applicable in all fifty states were the Court to adopt the broadest of their arguments.
Under Chief Justice John Roberts, the Court has often tried to avoid cases and decisions with these kinds of broad impacts, and in this instance, there were procedural grounds that presented the Court with easy outs, should the Justices have wanted to take them. Had they done so, and let the latest decision regarding the suit stand, they would have made same-sex marriage legal in California, but nowhere else—and, considering that it is already permitted in nine states and the District of Columbia, this might not have been such an unacceptable outcome even for the staunchest of gay marriage’s opponents. Instead, there seems to be support for a decision on the merits of the big issue of the day.
Rod Dreher, an opponent of marriage equality, bets that his side will lose:
I predict that gay marriage will be a constitutional right by this time next year.
What Ambinder is hearing:
Court watchers I’ve corresponded with believe that the likeliest outcome, given the justices’ individual histories on similar questions, would be a decision that strikes down the federal recognition prong of DOMA while also ruling there is no constitutional right to get married. This result would mean that married gay couples would be eligible for federal benefits but that gays could only get married in states where such unions were legal.
But Jason Mazzone thinks that the federalist argument against DOMA has its weaknesses:
One approach would say that section 3 actually has no impact on state power. States are perfectly free to recognize marriages between two men and two women and states are free to give out state marriage benefits in accordance with state definitions. Section 3 is merely about federal law and federal governmental benefits. It is understandable why New York, Massachusetts and other states where same-sex marriage is lawful would want all of their married couples to receive the same federal benefits. But state power to define marriage is not undermined just because the federal government follows a standard, for federal purposes, that does not track that of particular states.
Scott Lemieux’s read on the justices:
Tentatively, I would guess that the most likely outcome of the California case is that Prop. 8 will be struck down with a narrow opinion very similar to Kennedy’s opinion in Romer v. Evans. I would not be surprised, however, by either a blockbuster opinion making same-sex marriage legal in all 50 states, and I would also not be surprised if Prop. 8 is upheld. The oral argument will be fascinating and the outcome as suspenseful as this year’s ruling upholding the Affordable Care Act. If DOMA were to upheld, conversely, this would be a major surprise and a bitter defeat for social justice.
Some marriage equality supporters are unhappy that SCOTUS took both cases:
“I’m not thrilled,” said Katherine Franke, a professor of law at Columbia Law School, where she directs the center for Gender and Sexuality. “I would have preferred they took the Windsor case alone.” Windsor’s case, Franke explained, asks the court a relatively narrow question: whether the federal government can override states’ decisions about same-sex marriage laws. The argument against Prop 8, on the other hand, centers around whether people have a fundamental, constitutional right to marriage. Franke, like many other activists, has worried that it is too soon for the Supreme Court to deal with such a broad reaching question when the public opposition to same-sex marriage in the South and parts of the Midwest is still strong.
Stephen Miller has similar concerns:
[W]hile the court might now uphold Prop 8 and deny Californians marriage equality, there is at least the possibility that the court, through its Prop 8 decision, could declare that all states must allow same-sex marriage as a matter of equal protection under the law. Would that provoke a backlash that could strengthen the anti-gay contingent of the GOP? Probably. There is a sound argument that it would be better in the long run to let marriage equality advance through the states. There is also an argument that equal means equal.
Linda Hirshman also considers the risks:
Justice Kennedy has delivered an almost unbroken series of conservative votes in the last several years, swinging almost not at all between the factions. It pays to remember that even after a series of cautious moves led to victory, when the women’s movement asked for inclusion of pregnancy in disability benefits – they lost decisively. The closest case to the Boies-Olson litigation in the women’s movement – Roe v. Wade — triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver.
And Jonathan Bernstein looks beyond the current court cases:
If the court strikes down DOMA, but narrowly, Republicans could try to pass a new version. If it doesn’t strike down DOMA, Dems will likely try to repeal it. And if the decision winds up promising future court fights, then gay and lesbian issues may move to higher importance in battles over the next set of judicial nominations. At the very least the Court will probably determine the nature of this ongoing battle going forward.
(Photo: Nancy Monahan, right, a retired Coast Guard petty officer, shares a laugh with her wife, Deb Needham, after their wedding at City Hall on December 9, 2012 in Seattle, Washington. By David Ryder/Getty Images)