In the wake of last week’s announcement that the Supreme Court will hear lawsuits challenging California’s Proposition 8 and the Defense of Marriage Act, observers over the next several months will wait on pins and needles for what may be the most significant ruling on LGBT rights in history.
Here are five questions that advocates are pondering as they await decisions in Hollingsworth v. Perry, the challenge to Prop 8, and Windsor v. United States, the lawsuit against DOMA.
1. Will the Supreme Court overturn same-sex marriage bans in all states?
By taking up the Prop 8 case, as opposed to letting stand a more narrow ruling from the U.S. Ninth Circuit Court of Appeals that applied only to California, the court has an opportunity to make a ruling that not only says the same-sex marriage ban in California is unconstitutional, but marriage bans in all states throughout the country are as well.
David Boies, a co-counsel representing plaintiffs in the lawsuit on behalf of the American Foundation for Equal Rights, said during a conference call last week justices would produce a ruling that’s more expansive than California if they decide the Prop 8 case on its merits and find it violates the U.S. Constitution.
“That would mean there would be a fundamental right to marry in every state in the country because obviously the federal constitution applies to every state in the country,” Boies said.
Much in the same way that the 1967 ruling in Loving v. Virginia ended bans on interracial marriage in all states, such a sweeping decision from the Supreme Court in Prop 8 would require the 41 states that don’t have same-sex marriage on the books to allow gay couples to marry. Not only would marriage equality be restored to California, it would be extended to the estimated 646,000 same-sex couples throughout the country.
Jon Davidson, legal director at Lambda Legal, said this outcome is one of several possible ways the Supreme Court could rule if justices find a constitutional right to marry under either the due process clause or the equal protection clause.
“Either finding that we share the fundamental right or finding that it violates equal protection generally to not allow same-sex couples to marry when different-sex couples can would extend the right to marry to all 50 states,” Davidson said.
Still, the general consensus among legal experts is that the court isn’t likely to reach this outcome when it’s possible for them to reach a ruling on more narrow grounds that would just affect California or a limited number of states.
Doug NeJaime, who’s gay and a law professor at Loyola Law School, posited that since California allows domestic partnerships but not same-sex marriage, the court could produce a ruling requiring all eight states that offer either domestic partnerships or civil unions to provide full marriage rights for gay couples. Those states are California, Illinois, Rhode Island, Delaware, Hawaii, Oregon, Nevada and New Jersey.
“The middle course would be one that says states that have allowed same-sex couples to have comprehensive domestic partnerships or civil unions don’t have an adequate justification for preventing them from marrying,” NeJaime said. “That would affect more than just California, but it wouldn’t affect every state.”
2. What happens if the Supreme Court upholds both Prop 8 and DOMA?
In what he might be considered the opposite scenario compared to the situation described above, the Supreme Court could also deal a devastating blow to LGBT advocates by upholding either or both Prop 8 and DOMA.
A loss for LGBT advocates in the court in the Prop 8 case would mean they would need another voter-initiated ballot campaign to repeal the measure ballot, much like the divisive and expensive 2008 campaign that led to its passage by voters.
John O’Connor, the newly appointed executive director of Equality California, said “everything’s on the table” for discussion in the event that the Supreme Court determines the ban on same-sex marriage in California is constitutional.
“The question about would we go back to the ballot — it’s absolutely a possibility,” O’Connor said. “The timing and the tactics and all of that remain to be determined between now and the time the decision comes down but it’s absolutely a priority for us to plan that.”
Asked whether he’d rule out the possibility of going back to the ballot in 2014 at this point, O’Connor replied, “Absolutely not. I wouldn’t rule it out. That’s definitely a possibility that we’ll be considering.”
Similarly, a decision upholding DOMA would mean that Congress would have to act to repeal DOMA — mostly likely using the Respect for Marriage Act as the vehicle to undo the law. That would be a difficult task as long as Republicans remain in control of the House.
Rep. Jerrold Nadler (D-N.Y.), the chief sponsor of the Respect for Marriage Act, said in a statement he intends to work with Congress to build support for the legislation even before the court renders a decision on DOMA.
“As the Supreme Court reviews DOMA, I will continue to spearhead the participation of Members of Congress who believe that DOMA is unconstitutional in the Windsor case,” Nadler said. “At the same time, I will keep working with my colleagues to increase support for the Respect for Marriage Act, my bill to repeal DOMA and remove official discrimination from our legal code.”