The U.S. Supreme Court will rule in two key gay rights cases tomorrow morning (at about 7 a.m. MDT). I am writing now in the event that I don't get a chance to do so tomorrow morning and as a preview of tomorrow's decisions.
One of the cases concerns the validity of the provisions of the Defense of Marriage Act's provisions prohibiting the federal government from recognizing same sex marriages recognized under state law. The Obama administration now concedes that this law is unconstitutional as the lower courts have held, but other parties have claimed standing to litigate the argument that the law is constitutional in the U.S. Supreme Court.
The procedural issue of the standing of those parties to litigate the constitutionality of the act could resolve the matter (if they lack standing to defend it, the law will be held invalid). On the merits, one of the main issues is that the definition of marriage for federal law purposes is a state law matter not within the jurisdiction of the federal government. The conventional wisdom expectation based upon oral arguments in the case is that this part of DOMA will be declared unconstitutional by the US Supreme Court on some ground, although the exact grounds are less clear. But, of course, the U.S. Supreme Court sometimes surprises us.
Advocates for gay rights are fairly unanimous in hoping that SCOTUS will strike down the portions of DOMA pertaining to the federal government's recognition of same sex marriage, which is particularly imperative now that gays and lesbians can serve openly in the military.
The other gay rights case to be decided tomorrow concerns the constitutionality of California's Proposition 8. A federal trial court and the 9th Circuit Court of Appeals have held that the Proposition, which repeals same sex marriage in California, is unconstitutional.
A variety of rulings on the merits or on standing issues in this case (which the usual government officials have refused to defend), with varied forms of practical impacts, are possible. For example, a ruling could conceivably (1) reverse the lower courts and uphold Proposition 8 in California (which would not impact same sex marriage legislation elsewhere), (2) could invalidate Proposition 8 in some manner that does not have precedential effect in states other than California, (3) could invalidate laws banning same sex marriage in the 9th Circuit, (4) could invalidate laws banning same sex marriage nationally, (5) could invalidate laws banning same sex marriage in any jurisdiction that has previously had legal same sex marriage, or (6) could invalidate laws banning same sex marriage in any jurisdiction that has civil unions. (I will spare my readings in this short preview post, an explanation of precisely which rulings on which issues would give rise to which outcomes.) Like the DOMA case, this one presents both standing issues and merits issues, which is one of the reasons that so many outcomes are possible. It was not at all clear how the Court would rule in this case, which is the hottest case of this year's term, based upon oral arguments in the case.
There is not a consensus among gay rights advocates over what outcome is most likely or best advances the cause (other than a national declaration that bans on same sex marriage are unconstitutional, which seems unlikely, based upon the oral arguments in the case).
Chief Justice Roberts is believed to be the author of the majority opinion in one of the cases, and Justice Kennedy is believed to be the author of the majority opinion in the other (based upon opinion writing assignments in other cases so far this term).
A Roberts opinion invalidating DOMA on federalism grounds, and a Kennedy opinion reaching some sort of compromise middle ground outcome in the Proposition 8 case seems most likely.
A third, far less high profile federal statutory law case unrelated to gay rights will also be ruled upon tomorrow morning.
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SCOTUS ruled that Section 3 of DOMA which forbids the federal government from recognizing same sex marriages that are valid under state law was unconstitutional (J. Kennedy in a 5-4 opinion on liberal-conservative lines), and that the parties appealing a ruling holding that Prop 8 was unconstitutional lacked standing to appeal as a matter of federal law applicable to federal courts notwithstanding a CA Supreme Court ruling to the contrary (CJ Roberts in a 5-4 opinion on mixed partisan lines). Thus, same sex marriage will be legal again in California in a matter of days or weeks with minimal impact as precedent beyond California on the issue of same sex marriage.
Basically, the rulings taken together support full recognition of same sex marriage in states that allow it, but does not yet create a federal constitutional right to same sex marriage in states that have not authorized it.
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