Is the Supreme Court Ready To OK Gay Marriage?

The law, lawyers, and the court.
Dec. 7 2012 4:56 PM

The Civil Rights Case of Our Generation

The Supreme Court has agreed to consider the constitutionality of gay marriage. This is gonna be big.

Opponents of Proposition 8, California's anti-gay marriage bill, demonstrate in San Francisco.
Opponents of Proposition 8, California's anti-gay marriage bill, demonstrate outside of the 9th U.S. Circuit Court of Appeals on Feb. 7, 2012, in San Francisco

Photo by Justin Sullivan/Getty Images.

It’s going to be one blockbuster of a history-making year at the Supreme Court.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

The justices announced Friday that they will hear two cases about gay marriage. The first, United States v. Windsor, is the small step. The second, Hollingsworth v. Perry, is potentially giant. With the choice between staging a nice little one-act play about states that recognize gay marriage and a full-dress, five-act opera about whether states can constitutionally ban it, the court chose the big production. This is it: The civil rights issue of our generation, in the hands of nine justices. As a reporter, I couldn’t be more excited. As a supporter of gay marriage who is also a nervous Nellie, I’m kind of terrified.

Edie Windsor and Thea Spyer met in 1963. They lived together and registered as domestic partners 1993. In 2007, Spyer got multiple sclerosis. She and Windsor got married in Canada that year, and Spyer died in 2009. New York, where they live, recognized their marriage, but because Congress defined marriage as a union between a man and a woman in the 1996 Defense of Marriage Act, Windsor had no spousal rights, according to federal law, when her wife died. She had to pay $363,053 in estate taxes—which she wouldn’t have had to pay if she’d been married to a man.

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This is the sympathetic story the gay rights movement teed up for the Supreme Court and in particular for Justice Kennedy, who loves two things: states’ rights and gay rights. (I am stealing that line, along with plenty else, from New York University law professor Kenji Yoshino.) Windsor is about gay marriage, of course, but it’s also about whether states should retain their role as the primary source of law for marriage, divorce, and other domestic relations. I love this case because it looks like a winner. Windsor won before the U.S. Court of Appeals for the Second Circuit. The Justice Department argued that the Supreme Court should take this case.

Perry is a whole different ball game. This is the case brought by the odd-couple hotshots David Boies and Ted Olson. They argued that it was unconstitutional for voters in California to ban gay marriage by passing the referendum Proposition 8 after the state supreme court legalized it. Olson and Boies asked the big civil rights question of our time: Does the Constitution’s guarantee of equal protections bar states from discriminating against gay couples by preventing them from marrying? They argued that there was no important societal interest served by this form of discrimination. And they won after an amazing 12-day trial in which the lawyer defending Prop 8, when asked how allowing gay marriage would harm opposite-sex couples (the societal interest supposedly at stake) famously said, “Your honor, my answer is: I don’t know. I don’t know.”

When Olson and Boies’ victory was appealed, Judge Stephen Reinhardt of the U.S. Court of Appeals for the 9th Circuit upheld the win—but went to great lengths to limit its scope. He called Prop 8 “unique” because it took away a right to marriage that had already been exercised by thousands of California couples. That meant the 9th Circuit ruling for gay marriage only applied in California, not states like Idaho and Alaska and Arizona, which are also covered by the 9th Circuit. This was the nice, safe step. But Prop 8 supporters, in their petition to the high court, made the case bigger. They wrote, “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.”

Now what? Does the Supreme Court agree—do five of the justices see this in terms of doom rather than progress? Or could they possibly side with Olson and Boies all the way and declare gay marriage legal in every single state? That would mean changing the laws of 41 states that have not yet taken that step. At a panel discussion I did with Yoshino and Jeffrey Toobin on Thursday night at New York University, Yoshino argued that the court will find some middle ground, some way to allow gay marriage in California without forcing it on the parts of the country that aren’t ready. He also pointed out that other state marriage bans, in Hawaii and Nevada, are also bubbling up through the courts, which could make the justices feel that delaying the big question (my own nervous Nellie preference) isn’t really an option.

It takes four votes to decide to hear a case—the step announced today—and five votes, of course, to decide the outcome. So we truly don’t know what today’s news means, which justices want to go for broke and which don’t, or where this will take the country. Earlier this week, Tom Goldstein of Scotusblog wrote of the gay marriage petitions granted today, “These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.”

So I’m more than a little anxious—that’s my nature. And there’s so much at stake, because when the Supreme Court gets the big stuff wrong, it can take a long time to undo the damage. But I can’t wait to watch this megaproduction. I can’t think of a more exciting show.

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