Which Gay Marriage Case Should the Supreme Court Take?

The law, lawyers, and the court.
Nov. 29 2012 10:30 AM

Gaming Gay Marriage

Which case should the Supreme Court take?

A gay couple marries at Gracie Mansion in New York.
Jonathan Mintz (left), John Feinblatt, and their daughters before Mintz and Feinblatt's wedding in New York in 2011

Photo by Don Emmert/AFP/Getty Images.

On Friday, the Supreme Court will conference about whether to hear one or more of the 10 petitions about gay marriage that are currently before the justices. Eight of the cases are about the federal definition of marriage—a union between a man and a woman—and whether it holds in states that have legalized same-sex marriage. One case is about a similar restrictive definition of marriage under Arizona law. The final case is about California's Proposition 8, the voter initiative that banned gay marriage after the state courts allowed it. This piece, from Sept. 20, takes a look at the Supreme Court's options while we wait to hear what the justices will do. They could announce their plans Friday or Monday, or delay making a decision.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

Survey the array of cases about same-sex marriage that could be on their way to the Supreme Court, and you can see three sides in this legal war. There are the opponents of legalizing gay marriage—they’re easy to identify. There are the supporters who are long-time gay rights lawyers and advocates—also clear. And then there are David Boies and Ted Olson, the superstar odd-couple pair who swooped in with a dazzling victory in their challenge to Proposition 8, California’s referendum banning gay marriage.

Boies and Olson have the same goal as the gay rights community: equal marriage rights for all, across the country. But their strategy has been very different—both bolder and more foolhardy. At trial, and then in defending their victory on appeal, they went for the whole megillah: a broad ruling that marriage is a fundamental constitutional right for everyone, full stop, right now. This has the appealing, but demanding, ring of clarity. It requires the courts to take giant steps rather than small ones—which is often not what they do well.

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The gay rights lawyers, by contrast, have carefully gone for less now in hopes of winning more later. In a half-dozen cases, they have successfully sued on behalf of gay couples who got married where state law allows them to but cannot receive federal benefits, like pensions, that go to other married couples because they’re blocked by the Defense of Marriage Act. That’s the law Congress passed in 1996 to define marriage as the union of a man and a woman for federal purposes. It’s the reason why states that don’t recognize gay marriage don’t have to honor the weddings conducted in states that do.

Now the Supreme Court has a choice. As early as next week, the justices could agree to hear one of the more cautious DOMA challenges in states that include Massachusetts, Connecticut, and New York. The Obama administration is on board for these cases. But the court could go for broke and take Hollingsworth v. Perry, the California Prop 8 case. (The court could also do nothing, though given the number of percolating challenges that seems unlikely—Justice Ruth Bader Ginsburg suggested this week that it was likely the court would make a move.)

So, what should the justices do? They should take the step-by-step path. It’s better for the future of gay marriage and wiser Supreme Court practice.

Prop 8 supporters are jumping up and down to convince the court otherwise. They lost at trial and on appeal to the U.S. Court of Appeals for the 9th Circuit, so they have the most to gain from Supreme Court review. Their petition to the high court is full of doom and gloom: “The 9th Circuit’s sweeping dismissal of the important societal interests served the traditional definition of marriage is tantamount to a judicial death sentence for traditional marriage laws throughout this Circuit.”