As Lambda Legal's handy infographic explains, there are multiple avenues the Court could take. One path holds that despite all the time and effort we've spent bringing these cases to the Supreme Court, these cases don't belong there. And because the pro-equality side won in the courts below, such decisions would give us a good result. In Prop 8, Judge Walker's decision would stand and the world's fifth largest economy (California) would be the next equality state. In the DOMA case, the Second Circuit decision declaring DOMA unconstitutional would stand and DOMA would be unconstitutional in some jurisdictions. Notably, there are several other DOMA cases — Golinski in California, Gill in Massachusetts, and Pedersen in Connecticut — which could take over the process, but that would take us into the Court's next term.
Those results would be unsatisfying even though it allows California's gay couples to marry and further damages the DOMA brand.
First, it would wipe out the Ninth Circuit's decision in Perry v. Brown. If you recall, that decision held that Prop 8 was unconstitutional not on the broad grounds that gay marriage bans violate equal protection or due process, but because California could not take away marriage rights already granted. That decision has its own problems, but it was, at a minimum, the first federal appellate court that declared a ban on marriage equality unconstitutional. A standing holding by the Supreme Court would hold that the Perry case should not have been before the Ninth Circuit at all, thus erasing that decision and its precedential value.
Second, it would create an absurd situation where DOMA is unconstitutional in the First and Second Circuits — and possibly soon the Ninth Circuit — and legal everywhere else. Administration of that result would be exceedingly hard: If you lived and married in New York, you get federal benefits and the IRS, immigration authorities, and others would treat you as married. If you lived down the highway in Maryland, you can get married, but since you're in the Fourth Circuit, where DOMA is still viable, you're strangers in the eyes of the federal government.
But a standing decision in the Prop 8 case is likely the best result we can realistically espect. The Court is unlikely to reach a sweeping decision legalizing marriage equality everywhere. The Court is also not likely to adopt the President's so-called 8 State Solution, which would invalidate marriage bans in those 8 states that have civil union laws that are identical to marriage, but without the name. We've discussed the logical problem with that argument before. Plus, I am not confident that this otherwise conservative Court will be able to cobble together 5 votes for anything other than the most narrow decision on an issue that is so toxic to some of them.
And thats ok. If a case is not properly before a court, that court has to dismiss it. Otherwise, we'd be inundated with frivolous and ridiculous lawsuits. It means that our quest for a national right to marry will continue going from state to state and would require another case to reach the Supreme Court (if we choose to go that route again), but it may not be such a bad thing to continue to drive our momentum forward in the states and give the federal courts some time to catch up.
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Follow me on Twitter: @ariezrawaldman
Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.
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