March 27 (Bloomberg) -- The U.S. Supreme Court takes up its second gay-marriage case in two days, one that gains new significance after the justices signaled reluctance to decide whether same-sex couples have a constitutional right to wed.
Justice Anthony Kennedy, the court’s likely swing vote, yesterday asked whether the court made a mistake in agreeing to review California’s ban on same-sex marriage. His misgivings, echoed by Justice Sonya Sotomayor, suggested that the court may take the unusual step of dismissing the marquee case of its term.
“There was a genuine concern about going too far, too fast,” said Charles Fried, a Harvard Law School professor who was President Ronald Reagan’s solicitor general. “I sensed a genuine regret that the court had this case before it now.”
Sidestepping the California case -- billed as potentially the biggest civil rights dispute in decades -- would leave today’s clash over the U.S. Defense of Marriage Act as the best hope for gay-rights advocates to lay the legal groundwork for a later ruling conferring same-sex marriage rights.
The 1996 law defines marriage as a heterosexual union, meaning that gay couples who are legally married under state law are considered unmarried under federal law. They can’t file joint federal tax returns, claim a spousal exemption from estate taxes or collect Social Security survivor’s benefits. The Obama administration opposes the law, while continuing to enforce it.
Kennedy, 76, suggested yesterday he may be unwilling to address California’s Proposition 8, the 2008 ballot initiative that halted gay marriage in the state after five months. He said an appeals court decision that struck down the measure might be too narrow to warrant a high court ruling on the sweeping questions involved.
“I just wonder if the case was properly granted” a high court review, Kennedy said during the 80-minute session yesterday in Washington.
Sotomayor also suggested it is too soon for the court to rule on gay marriage.
A non-decision would probably disappoint both sides, including the thousands of people who demonstrated outside the Supreme Court building in Washington yesterday as the justices heard arguments.
Public support for gay marriage is at record levels in opinion surveys. A Pew Research Center poll released last week found that 49 percent of adults supported legalization, with 44 percent opposed. Ten years earlier, a Pew poll found only 33 percent in support, with 58 percent opposed. Nine states and the District of Columbia now let gay couples marry.
Sotomayor said the court has taken its time on landmark issues before.
“We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954,” she said.
In 1954, the justices issued the landmark Brown v. Board of Education ruling, barring racial segregation in public schools and outlawing the “separate but equal” facilities for black people that the court had upheld a half-century earlier.
The high court similarly took its time before declaring that blacks and whites had a constitutional right to marry one another. In 1955, the court “cooked up a technical basis” for not hearing a challenge to a Virginia ban, said Dennis Hutchinson, a professor at the University of Chicago Law School.
Not until 1967 did the Supreme Court take up interracial marriage. By then, only 16 states outlawed the practice, and the high court’s ruling was almost a foregone conclusion. It rejected Virginia’s law unanimously.
Roe v. Wade
That ruling gained broad public acceptance in contrast to the court’s decision six years later in Roe v. Wade, which legalized abortion nationwide and fueled a debate that continues to this day.
Justice Ruth Bader Ginsburg last year said the court should have limited its ruling on abortion to the Texas law at issue in that case.
“It’s not that the judgment was wrong, but it moved too far, too fast,” Ginsburg said at Columbia Law School in New York.
If the court rules in the gay-marriage case, it has a spectrum of options. It could reinstate Proposition 8 and leave each state to decide about letting gays marry. It could issue a narrow ruling that would create a right to gay marriage in California and perhaps a handful of other states. Or it could announce a constitutional right to gay marriage nationwide.
Should the justices sidestep the issue, they have two paths. One is to simply dismiss the appeal. That would leave intact the appellate court decision and reinstate same-sex nuptials in California.
It would also be embarrassing for the court, Hutchinson says. Dismissing the case now “would make the court look like either they don’t know what they’re doing or that they choked,” he said.
Alternatively, the court could rule that the sponsors of the case lacked legal “standing” to file an appeal after U.S. District Judge Vaughn Walker declared the law unconstitutional in 2010. That’s an issue in the case because the state of California is opposing Proposition 8.
The question then would become how broadly Walker’s ruling would apply. The group challenging the law says the decision would extend statewide, meaning gay marriage would be reinstated in California. Backers of Proposition 8 say the ruling would apply at most to the two couples who sued to challenge the measure.
Several justices, including Chief Justice John Roberts, yesterday questioned whether the Proposition 8 sponsors had standing. Kennedy called the issue “substantial.”
“I suspect there are five votes to get rid of the case, probably on standing grounds,” Hutchinson said.
The Defense of Marriage Act, known as DOMA, is being challenged by Edie Windsor, an 83-year-old New York resident. Windsor is fighting a $363,000 federal estate tax bill imposed after the 2009 death of her same-sex spouse that she wouldn’t have to pay if she were married to someone of the opposite sex. Windsor and Thea Clara Spyer were married in Canada in 2007.
Windsor and the Obama administration argue that the law violates the constitutional guarantee of equal protection by treating married gay couples differently than heterosexual spouses.
Congressional Republicans led by House Speaker John Boehner are defending the measure. They contend it promotes traditional marriage and, by extension, makes it more likely that children will grow up in a nurturing environment.
Two federal appeals courts rejected that reasoning. In the Windsor case, the New York-based 2nd U.S. Circuit Court of Appeals broke new legal ground by saying that laws discriminating against gays, like those targeting racial minorities and women, should get especially rigorous scrutiny from the courts. The Obama administration backs that approach.
Should the Supreme Court agree, gay-rights advocates say the court’s reasoning would doom laws that outlaw same-sex marriage.
The DOMA case also has its own procedural questions. The first is whether the Constitution gives the court power to decide the case, given that the plaintiff and defendant -- that is, Windsor and the federal government -- agree on the proper outcome. The court also will consider whether the congressional leaders have standing to press their own appeal.
A ruling that the court lacks power to rule might leave the status of DOMA in legal doubt for years.
The cases are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.
To contact the reporter on this story: Greg Stohr in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Steven Komarow at email@example.com