Civil and Human Rights

Disappointing wins for gay marriage?

By: Josh Gerstein


Gay rights forces might just win both of the cases they presented to the Supreme Court this week, but still come up short of their broader legal goals.


A majority of justices seemed inclined to favor gay groups on both cases by letting same-sex marriage return to California and by wiping the federal Defense of Marriage Act from the books.


But the justices looked to be headed for rulings that would not have a sweeping effect on the rights of gays under the law — failing to deliver the kind of transformative moment many in the gay rights movement had hoped for.


In the first case, involving Prop. 8, California’s voter-approved ban on gay marriage, the justices seemed inclined to punt.


Lawyers say there are two ways the court could dump the case without looking at the heart of the matter. Either route would leave in place lower court rulings that held the measure unconstitutional. The net result would be the return of same-sex marriage in California, probably for all who seek it.


The justices also appeared ready to deep six DOMA, the 1996 law that denies a wide variety of federal benefits to same-sex married couples.


However, the court’s liberals and Justice Anthony Kennedy honed in on different reasons for nixing the law. The liberals saw it as unconstitutional discrimination against gays and lesbians. But Kennedy stressed that the law amounts to an intrusion on the traditional authority of states to oversee marriage and other family matters.


“I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said.


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If Kennedy joins with the four liberals, they could provide the five votes needed to strike down DOMA. But the ruling wouldn’t be the kind of legal precedent many gay rights advocates were expecting that finally establishes sexual orientation as the kind of suspect categorization that courts subject to “heightened scrutiny.”


“I think we will get two very good outcomes. The question will be how broad a ruling do we get in either case,” said Richard Socarides, a lawyer and former White House adviser to President Bill Clinton on gay and lesbian issues. “Of course, we would like a finding of heightened scrutiny on the DOMA case and we would like a finding that same-sex marriage is a fundamental right in the [Prop. 8] case.”


Socarides stressed that even the less than sweeping decisions the justices seemed to be headed for in the two cases would be very significant. “If DOMA is struck down and same-sex marriage rights are returned in California — no matter on what grounds…it will be a very big win,” he said. Without DOMA, same-sex couples would be permitted to file joint tax returns and same-sex couples would be eligible for full employee benefits if one spouse works for the federal government.


“It definitely could happen,” said Carrie Severino of the conservative Judicial Crisis Network. “It would not be totally satisfactory to anyone…..I know maybe [same-sex marriage advocates] would rather have a sweeping decision, but actually that might be a bad outcome for them.” She said broad rulings, like one mandating same-sex marriage rights in all 50 states, could cause a “public outcry.”


Severino said she still hopes the court will uphold both Prop. 8 and DOMA. She pointed to the justices’ widespread reluctance to embrace the Obama Administration stance that the Constitution should be found to require same-sex marriage rights now in only the roughly eight states that already have broad civil union rights for same-sex couples. “One thing everyone seemed to reject was [that] middle ground,” she said.


Elizabeth Wydra of the liberal Constitutional Accountability Center said she believes a kind of hybrid opinion is possible in the DOMA case that weaves the discrimination concerns together with the federalism issues. She noted that Justice Elena Kagan seemed headed in that direction.


“A lot depends on how the court writes the opinion. If it does strike down DOMA, there could be language there that could be helpful for supporters of marriage equality in state, local and private cases,” Wydra said.


In the Prop. 8 case, “there seemed to be a lot of hemming and hawing about actually reaching the fundamental issue,” Wydra observed.


In advance of the arguments, some gay rights advocates may have allowed their hopes to run wild, Socarides conceded. “A broad ruling in the [Prop. 8] case was always kind of a dream result,” he said. He noted that former George W. Bush solicitor general Ted Olson convinced many in the gay community it was possible, if not likely, to win a sweeping, 50-state ruling in favor of gay marriage.


“Ted Olson knows this better than anyone else and he was always so optimistic. I think a lot of people found his optimism contagious,” Socarides said. “Who knows better than the former solicitor general?”


All the lawyers reading the tea leaves in this week’s arguments cautioned that it’s a practice that often ends up leaving pundits with egg on their faces.


At the arguments on Obamacare, “there weren’t a lot of people who left thinking, ‘This is going to get upheld under the tax clause,’” Wydra noted.

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