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Same-sex marriage and the Supremes: What will the court do now?

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The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country but that, instead, potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.

After this week’s arguments before the Supreme Court, what are the prospects for legalization of same-sex marriage across the United States, if not in Minnesota? The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country but that, instead, potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.

Constitutional Law 101

schultz portrait
David Schultz

The Supreme Court under Justice John Roberts has a history of closing the doors of justice. What do I mean by that? Since Roberts and Samuel Alito joined the court, the mostly conservative majority has issued numerous rulings making it more difficult for individuals and entities to bring cases. The court has taken a narrow view of standing.

Standing refers to whether a person has a right to bring a case to court. Not everyone is allowed to bring a case; one must show an injury. By that, the Constitution and the rules of civil procedure require that a person show that he or she is injured in someway – legally or injured in fact – and that s/he is  the appropriate person to claim that injury. During Roberts’ tenure, his court has made it difficult for taxpayers to challenge government use of money for religious purposes, and in general has also made it hard (as in the Walmart sex-discrimination case), for class actions to move forward.

In other cases, when it comes to medical devices or generic drugs, the Roberts court has made it difficult to sue on grounds that federal law preempts state law. Finally, the court has also made the basic threshold requirements for alleging a claim or injury more difficult, giving judges more discretion to thrown out cases. Finally, the court has made it difficult to challenge the facial validity of a law. This was the case with the Indiana voter ID case.

In short, the Roberts court is closing the door to the federal courts.

Finally, there are two other points about constitutional law that one needs to know. First, for a case to be brought in court there must be a case or controversy. By that, there must be a real dispute with opposing parties. If there are no opposing parties, then there is no dispute and therefore the courts must dismiss the case. Second, as a general principle, courts should generally not involve themselves in political questions or disputes, reserving their resolution for Congress, the president, or the states to resolve.

Closed doors but coming out of the closet?

Normally closing the doors of the courts means a denial of justice. But with the two gay-rights cases before the Supremes, might this closed-door policy  bring same-sex marriage out of the closest? How so? One needs to understand what law professors call the procedural posture of the two cases.

First look at the California Prop. 8 case. The California Supreme Court declares that state laws denying same-sex couples the right to marry are unconstitutional. Prop. 8 is then adopted by voters to overturn that ruling. Prop. 8 is then challenged in federal district court and it is declared unconstitutional. The 9th Circuit, on appeal, agrees, ruling narrowly that once rights have been granted they cannot be retracted for some group without violating the Equal Protection clause.

However what makes the California case interesting is that the State of California refused to defend Prop. 8 on appeal. Instead, the district court let some of the supporters of Prop. 8 intervene to defend it. This is where the problems begin.

On Tuesday the Supreme Court asked whether supporters of Prop. 8 had a right to bring the suit. The court said that the appropriate party to defend Prop. 8 was the state and that these individuals lacking standing to bring the case. Moreover, several members of the court also wondered whether these supporters had suffered any injury in fact or law. By that, can they show how same-sex marriages harm them or traditional marriages? The court seemed  unconvinced by their answers.

The standing and injury issues are important. If there is no standing or injury, the case would be dismissed. If dismissed, the lower court decision would stand, thereby invalidating Prop. 8, and therefore by default legalizing same-sex marriage in California. Six of the Supreme Court justices suggested this is a possible direction they may go. Effectively, they are closing the door of the federal courts and that may work to the benefit of advocates of same-sex marriage.

The same closing of a door may also work to the advantage of the same-sex marriage in the DOMA case. Here, the challenge is the 1996 federal DOMA law denying federal benefits to same-sex couples even in states where such marriages are recognized. Again, there is an oddity to this case: The Obama administration has refused to support the constitutionality of the law in court and instead is arguing against it while still enforcing the law. The law was defended by the Republican leadership in the U.S. House of Representatives and not by the president (whose job it is to defend federal laws).

Why is this significant? There may not be a case or controversy here. If no one is defending the law, then the case gets dismissed. Several justices expressed concern about this, along with concerns about standing. Given that a lower court had ruled against DOMA, refusal of the Supremes to rule on this case may mean that the lower court decision stands and DOMA is gone.

Finally, in both cases majorities seemed unwilling to want to rule in a way that would create a 50-state rule. They expressed concern that for the Supreme Court to act would pre-empt states from experimenting with marriage, a traditional state function. This was Justice Anthony Kennedy’s concern regarding the DOMA case. Other justices suggested that gay marriage was such a new concept that they should let states do what they want. Still others raised concerns that DOMA stood in the way of state action and that federalism dictated that DOMA was unconstitutional.

So what does all this mean?

These procedural issues are important and may work to the benefit of same-sex marriage supporters. It is clear the Roberts court wants not to rule on these cases. Yes, there are some justices who would rule that bans on same-sex marriage are unconstitutional. But it is not clear that there are five votes to do that.

Moreover, the nature of the facts in these two cases make it difficult to reach this kind of ruling. Do not expect either of these two cases to be clear rulings  similar to the famous Loving v. Virginia that declared that bans on mixed-race marriages were unconstitutional.

The court here could use standing, injury, or the case and controversy concepts simply to throw out the cases. What would that mean? Prop. 8 is gone and same-sex marriage in California is legal and the DOMA is unconstitutional. This may not be the bigger ruling many want, but it is a long way toward constitutional recognition of same-sex marriage.

The Minnesota connection

Minnesota figured prominently in the Prop. 8 case. In 1971 the Minnesota Supreme Court ruled in Baker v. Nelson that Minnesota state law prevented same-sex couples from marrying. This was the first ruling on same-sex marriage in America, and I have covered this case in my State Constitutional Law course for over 20 years. That case was appealed to the U.S. Supreme Court and the Supremes denied to hear it, in part presumably because it did not raise a federal question. This case was discussed in the Prop. 8 case in terms of whether the denial Baker still represented good precedent for the Supreme Court to stay out of the same-sex marriage dispute. 

Assume DOMA or Prop. 8 falls. What does it mean for Minnesota? Legally maybe invalidation of the federal DOMA might raise questions about the Minnesota DOMA (although the MN DOMA is about Minnesota’s recognition of same-sex marriages performed in other states). Depending on how the Supreme Court rules, it may open up legal challenges to the state law. Additionally, if the federal DOMA falls, then if Minnesota legalizes same-sex marriage, the federal government will have to recognize the marriage. It is less clear legally what the Prop. 8 case means for Minnesota.

However, culturally, decisions in these two cases will have a major impact on Minnesota. It may create more momentum for Minnesota to act legislatively, especially if the Legislature does not act this year.

Last thoughts: Kennedy’s swan song?

Every year I do a training session at Reuters/Thompson/WEST on the Supreme Court. About three years ago I argued that Justice Kennedy’s last vote on the Supreme Court would be to strike down laws banning same-sex marriage. He would do that and then resign. I still am betting that.

Kennedy will go out as the most ardent defender of GLBT rights ever on the Supreme Court. He will do that as conservative, old-line Catholic who is pro-life, anti-death penalty (for minors at least), and who supports prisoner rights. His decisions read of words about respect for all life and about human dignity – including for gays and lesbians. 

David Schultz is a professor at Hamline University School of Business, where he teaches classes on privatization and public, private and nonprofit partnerships. He is the editor of the Journal of Public Affairs Education (JPAE). Schultz blogs at Schultz’s Take, where this article first appeared.


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Comments (7)

  1. Submitted by Ken Chang on 03/30/2013 - 01:53 am.

    Same Sex marriage

    I disagree with this Lawyer on this issue. He has been teaching on this subject for 20 years and come to the wrong conclusions. This issue of Marriage is NOT about Love, equality and tax exemptions. It should NOT have gotten this far at all. Marriage is just a word that perpetuates the Formula of our Civilization, Humanity and Mankind. Since there is only one Formula that does this, a Male and Female has been doing it for Millions of Years, there are no other choices to choose. It is not an Option since there no others to choose from. We have no Future without this Formula. Without this Formula, you, me and he would NOT be here on Earth. Can Homosexuality Further Civilization? NO. Can Homosexuality bring Citizens, now and into the Future? NO. Can we Survive with Homosexuality? NO. Is Homosexuality responsible for any Existence? NO. Then should Homosexuality be Equal to the Male/Female Formula? NO. And one would be clueless like this Lawyer to proffer it. If he WERE to read the words of “Loving v. Virginia” where it says that Marriage is a basic RIGHT. This after just ruling that a Black MALE has a RIGHT to Marry a White FEMALE. THEN, it says that Marriage is “fundamental to our existence and our survival”. What other way to interpret these words. Only one Formula Creates our Existence and only one Formula for our survival, a Male and Female. It being irrelevant whether a couple can or can Procreate. The Formula is Compelling to maintain and nourish as no other can compete against it. Therefore this issue is moot. Homosexuality is moot too. He talks about “standing”, and mentions involvement and Proof of injury, but he fails to explain how an intangible, an Orientation only, with no way to prove that they are what they “claim” they are. in essence unknown and unprovable entities, should NOT have ‘standing”. instead of the Group Protectmarriage having no standing, it is the unprovable Homosexuals that has no “standing”. He should take my courses instead. Pity.

    • Submitted by Paul Brandon on 03/30/2013 - 12:44 pm.

      The Logic

      is no better than the Spelling.
      Homosexuality is natural and occurs in most (if not all) species.
      As the researcher Harry Harlow once said: if you put a batch of primates together, sooner or later everyone will do everything to everyone.
      As long as it stays at fairly low levels (currently about 5% of the population) homosexuality doesn’t interfere with the continuation of the species. In fact, given the current literature on altruism it could help.
      And of course, it has been a part of Western civilization for longer than the Christian theology underpinning the writer’s comments — read your Greek and Roman literature.
      And the human species survived for many tens of thousands of years before that.

    • Submitted by Rachel Kahler on 04/01/2013 - 09:17 am.

      Marriage and reproduction

      First, humans have been doing absolutely nothing for millions of years. But, if one must exaggerate our existence, one would find that marriages didn’t exist millions of years ago (or even 200,000 years ago when we first showed up as a species). However, reproduction still happened. It’s not a formula, it’s simply sex–a basic biological function that needs no license, no blessing, and no laws to happen. So, when talking about males and females and procreation, what is irrelevant is marriage itself.

  2. Submitted by Dennis Wagner on 03/30/2013 - 06:57 pm.

    Ken, Nice try, but no teddy bear

    You have no foundation to bring a case if you haven’t been harmed.
    Artificial insemination, for married as well as unmarried, beast as well as human been going on for, decades, stud services as well as concubine services, wet nurses. etc. etc. been going on for millennium,
    Point 1: Your point misses the point its about “Standing”
    Point 2: Your Male/female argument is like the standing argument, it has no basis: Are you suggesting outlawing fertility clinics, birth control, etc. “Anything other than 1:1 neanderthal style?
    Point 3 You don’t need to be married to make or conceive children, 30% of the children in the US are born out of wedlock today
    Strike 3 you are out.

    • Submitted by Paul Brandon on 03/31/2013 - 10:23 am.

      Are you arguing against

      David Schultz or the Supreme Court (at least some of its members)?

      • Submitted by Pat Berg on 03/31/2013 - 05:03 pm.

        It gets confusing when people forget to use the “reply” function

        Without the indent it’s not clear which comment they’re responding to. But I read Dennis’ comment as being in response to Ken’s.

        Hopefully he’ll chime in and clarify.

  3. Submitted by Virginia Martin on 03/31/2013 - 02:02 pm.


    Thanks, I think I’ll take a pass on your course.

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