By Richard Land, President of the ERLC
Recently the U.S. Supreme Court heard arguments on same-sex marriage; it was a high-stakes moment for both American society and for the court itself. The Court heard arguments on California’s Proposition 8 (Hollingsworth v. Perry) case and also reviewed the federal Defense of Marriage Act in U.S. v. Windsor.
Just like in Roe v Wade, a case widely discredited by legal scholars as poor law and credited by conservatives as the spark that ignited Christian activism, the court has a massive challenge ahead of it — threading the needle between state’s rights and the press of coastal public opinion.
The California case has the potential for far-flung reverberations in all 50 states. In the Proposition 8 case, the court will decide whether to overturn a lower federal court’s renunciation of Proposition 8, in which the voters of California voted to amend their state constitution to define marriage as only between one man and one woman. The presiding judge, the since retired Vaughn R. Walker, declared that “excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
The Obama administration filed a friend-of-the-court brief in the Proposition 8 case calling for same-sex marriage to be declared legal, arguing that it is a civil rights case. The general counsel for Proposition 8 supporters, Andrew P. Pugno, responded to the Obama Administration’s brief:
“By arguing that Proposition 8 is rooted only in irrational prejudice, the President has impugned the motives of millions of Californians, turned his back on society’s longstanding interest in both mothers and fathers raising the next generation, and disregarded the rights of each state to decide for itself whether to redefine marriage.”
The Supreme Court is basically faced with three choices.
First, the Court could overturn Walker’s decision and validate the right of the people of California to define and regulate marriage in their state. This would be in line with 224 years of American federal jurisprudence which has left marriage to be regulated by each state.
Second, they could uphold Walker’s decision which would legalize same-sex marriage in California alone. Currently, nine states (and the District of Columbia) have legalized same-sex marriage: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington and Vermont.
Third, the Supreme Court could take the occasion of this case to invalidate the prohibition against same-sex marriage in the more than 30 states who have voted in favor of such prohibitions, the most recent being North Carolina.
If the Supreme Court were to take this third option and use the Proposition 8 case to declare same-sex marriage the law of the land in all 50 states, it would create a firestorm similar to its overreach in the 1973 Roe v. Wade decision which struck down the abortion laws in all 50 states in one fell swoop. Even Supreme Court justice Ruth Bader Ginsburg, perhaps the most liberal Supreme Court justice ever, has argued that the Supreme Court, acting as it did in Roe v. Wade, attempted to take an extremely contentious and divisive issue (abortion) out of the public discourse and caused an extreme backlash which made the abortion issue much more contentious and divisive than it otherwise would have been over the last four decades.
If the Court were to make a similarly sweeping and divisive decision on gay marriage and seek to impose a one-size-fits-all solution on a deeply divided country, it would create a similarly tremendous backlash. Same-sex marriage would immediately return to the boiling point in American politics, and the Supreme Court would become similarly controversial in ways it currently seems to abhor.
One would hope the Supreme Court would heed the lessons of history and make a narrow ruling on California and California alone and not repeat the mistake of Roe and further divide and inflame the country on the deeply divisive issue of same-sex marriage. The better part of judicial wisdom would be to follow the precedent of the last 224 years and leave the issue of marriage to the various states.
Whereas the Proposition 8 case deals with the issue of whether the people of California’s amendment to their state constitution defining marriage as being only between one man and one woman violates the U.S. Constitution, in United States v. Windsor the Supreme Court is seeking to adjudicate Section Three of the Defense of Marriage Act (DOMA).
DOMA passed Congress with an overwhelming bipartisan majority in 1996 and defines marriage as only between a man and a woman concerning eligibility or applicability of more than 1,000 federal laws, benefits and programs that apply to marriage.
The most well-known section of DOMA, which allows states not to recognize same-sex marriages performed in other states, is not under challenge in the court in this case.
United States v. Windsor concerns Edith Windsor, who married Thea Spyer in 2007 in Canada. When Ms. Spyer died in 2009 and Ms. Windsor inherited her property, DOMA precluded Ms. Winsor from being treated as a surviving spouse by the Internal Revenue Service. Consequently, she faced a tax bill of approximately $360,000 that would not have been due had the marriage been a heterosexual union.
Ms. Winsor sued in federal court and won at the district and appellate level. Now, the Supreme Court has taken up the case on appeal from the appellate court.
Why did the Supreme Court agree to hear these two cases? What will their decisions be? Will the Court risk provoking the wrath of a sizable percentage of the public by seeking to take the marriage issue away from the people of the various states and imposing its definition of marriage on all 50 states?
Will the court further use the occasion to mandate that federal benefits accorded to heterosexual marriage must now all be applied to same-sex marriages performed in the states that legalize it?
Many people have damaged their reputations and some have depleted their bank accounts trying to predict or bet on what a particular Supreme Court will do concerning any given decision. Remember the Supreme Court’s unpredictable and surprising decision on the constitutionality of Obamacare?
Having acknowledged that the court is always notoriously unpredictable, I am prepared to take the plunge and make a prediction. Given Chief Justice Robert’s aversion to judicial activism, shared by a crucial number of his fellow justices, I believe the Supreme Court will take the path of least judicial activism and most judicial restraint.
I believe they will uphold the more that 200-year-old judicial tradition of letting the states regulate and define marriage within their borders and will uphold the people of California’s ban on same-sex marriage. They have heard Justice Ruth Bader Ginsburg’s concerns about Roe v. Wade and do not want to be the cause of such social and political division on the issue of marriage. Further, they do not want the court and its role to become the issue.
However, I believe they will, at the same time, take the opportunity of the United States v. Windsor case to decide that when a state has recognized same-sex marriage as legal within that state, such marriages should be treated the same as heterosexual marriage under federal law for the purposes of applicability of federal marriage benefits. I believe this is precisely why they took the United States v. Windsor case at the same time they decided to take up Hollingsworth v. Perry.
I believe they are going to seek to thread the needle and split the difference. Such decision making by the Supreme Court would leave the issue of defining marriage within the borders of each state (such as California), but at the same time declaring that if a state (such as New York) defines same-sex marriage as marriage, the federal government (including the IRS) would defer to each particular state’s definition of marriage when determining eligibility for benefits.
The end result would be that the Supreme Court would allow the same-sex marriage issue to continue to play out in the ebb and flow of the political process in the various states and keep the issue of marriage a “state” issue.