On Gay Marriage, the Court Can Go Big and Go Small

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By Andrew Koppelman

Did the Supreme Court go too big or too small when it decided to hear cases on same-sex marriage? It’s hard to tell.

The court has a big menu of options before it. It could decide that same-sex couples have a constitutional right to marry, or it could nullify their victories in the lower federal courts and avoid deciding anything about the substantive law, putting off those questions for another day.

One case it will hear, from California, concerns the right to marry, though the court below decided on narrower grounds that only apply to marriages in that state. The second case challenges a federal law that denies all federal benefits to married same-sex couples.

In both cases, the court asked for argument on the question whether the parties had “standing” to hear the case -- the right to be in court. Both California Governor Jerry Brown and President Barack Obama think that the laws they are charged with administering are unconstitutional.

The California law, Proposition 8, which stripped same-sex couples of their right to have their unions called “marriages,” is being defended by the proponents of the ballot initiative that enacted it. The federal law is being defended by a group of members of Congress led by House Speaker John Boehner. It’s not clear that either of these groups is properly before the court.

The court could decide that the California ballot proponents have no more at stake in the case than any other private citizens. That would leave no one to defend the law, since Brown agrees with the challengers. On the other hand, California still refuses to issue the marriage licenses without a court order. So if there’s no standing, this case would become like any other case in which one party refuses to litigate.

If you owe me $10, I sue you, and you don’t show up in court, the court will issue a default judgment compelling you to pay the money. The analogous relief here would be an order that the small group of same-sex couples who brought the California case would get their marriage licenses, but no one else would benefit. Proponents of same-sex marriage in California would have to start over.

That is only one possible outcome. The standing of the ballot proponents is unclear. If they do have standing, then the court could rule on the merits and decide the big issue, whether same-sex couples do or do not have a right to marry. It probably won’t.

The swing vote, Justice Anthony Kennedy, is probably reluctant to impose same-sex marriage on the whole country. But he also worries about his place in history, and he can see as well as anyone else that the proponents of same-sex marriage are going to win in the long run. Younger Americans overwhelmingly support it.

My guess is that the court agreed to hear the California case because the four conservative members -- Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts -- hoped to overrule the lower court’s decision that the state had to recognize such marriages. It only takes four votes to put a case on the court’s docket, and they may be hoping that they can win Kennedy’s vote, while discounting the danger that he will go the other way.  This would be a sensible call, since it is far from clear that any of the liberal members of the court are now willing to hold that same-sex couples have a right to marry.

Yet Kennedy could foil this strategy by declining, in the end, to review the case. Four votes are all it takes to hear a case, but five votes are sufficient to then dismiss that decision as improvidently granted.

The case involving the federal statute, the Defense of Marriage Act, is different. Perhaps the Boehner group hasn’t got standing, but the court has often appointed attorneys to argue positions that none of the parties were defending. It did so twice in the litigation over the Affordable Health Care Act. The default-judgment option is theoretically available in this case, but it would be irresponsible for the court to use it.

Some federal courts have held the Defense of Marriage Act  unconstitutional. Others have not. A big part of the court’s job is making sure that federal law is the same throughout the U.S. Whatever the merits -- and the Defense of Marriage Act is a repugnant, slapdash statute, but that’s another story -- the court has to decide this case. So it will likely go small on the ultimate question of same-sex marriage, while going big by striking down this law.

Andrew Koppelman is a professor of law at Northwestern University.

-0- Dec/11/2012 16:19 GMT