The U.S. Supreme Court is expected to decide soon whether the justices will take up two key cases about same-sex marriage. If the court declines to hear the cases, lower court rulings will stand, and they are favorable to same-sex couples. But that is not enough.
Several issues are converging at once in the legal process. The first is the Defense of Marriage Act, a law signed by then-President Bill Clinton. That unfortunate law allows states to refuse to recognize same-sex marriages from states that allow them. Under the act, the federal government also refuses to recognize same-sex marriages, which denies benefits for the spouses of federal workers. Several courts have appropriately ruled that the act, especially the denial of benefits, is unconstitutional.
Also in play is Proposition 8, the voter-approved California initiative that denied same-sex couples the right to get married. U.S. District Judge Vaughn Walker ruled that Prop. 8 is unconstitutional, but his judgment has been stayed pending the appeal to the Supreme Court.
That court’s justices are meeting at the end of this month in a private session in which they will decide which cases they will hear later in this court term. On Dec. 3, it is possible that the list the court releases will contain the Defense of Marriage Act and Prop. 8 cases. Yet the justices could decide not to hear the cases.
The best, albeit most tortuous outcome, would be for the justices to take on the cases. Some same-sex marriage advocates and supporters here in San Francisco hope the court doesn’t hear the Prop. 8 case so that Walker’s ruling will stand. If that were the case, there could be no further appeals, and marriages for same-sex couples could theoretically start that day. But while that would be a win for gay couples in California, it would be a loss for others in states where same-sex marriage is not allowed.
The same goes for the Defense of Marriage Act. Favorable rulings for same-sex couples would stand if the Supreme Court decides not to hear the case. But the favorable rulings have been narrow in scope, and the best outcome would be for the act to be completely overturned at the federal level. If states and the federal government both have to accept same-sex marriages as valid, that would immediately turn the tide from acceptance in a handful of states to the entire country.
Of course, some marriage equality supporters worry that the conservative-leaning court will rule the wrong way.
That fear is valid. But one would hope that the various lower-court rulings overturning the act should make it harder for conservatives to justify this discriminatory policy. Meanwhile, Walker’s ruling was more about not being able to take away rights already granted than it was about same-sex marriage, which could also prove a high hurdle for justices to clear. Most important of all, Justice Anthony Kennedy, the likely swing vote among the high court’s nine justices, also is the author of the two most progressive gay-rights decisions handed down by the court.
That should give everyone hope about the likelihood that the court will begin to make amends for our country’s discrimination against LGBT Americans.
In the recent election, three states approved laws legalizing same-sex marriage, making it nine states in which such matrimonies are legal. If the Supreme Court refuses to hear the Prop. 8 case, California would become the tenth state in which same-sex marriage is legal. But justice for one-fifth of the states is not enough. The Supreme Court needs to affirm the civil rights of all Americans — regardless of whom they love.