The Supreme Court's Mistaken Attempt to Dodge Gay Marriage

When the U. S. Supreme Court handed down its rulings in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case), it was trying to dodge the bullet of having to decide the issue of whether or not the equal protection clauses of the 5th and 14th Amendments to the U.S. Constitution require gay marriage nationwide.  Had the Court had a spine, it would have ruled that gay marriage is a fundamental right not to be abridged by the states or the federal government.  In the wake of the striking down of DOMA, we now see the federal government recognizing gay marriages regardless of where the same sex couple resides and the momentum to strike down state bans is growing.  A good overview of the reasoning of the recent Utah ruling which may be hard for the Supreme Court to ignore is here.  A piece in the New York Times looks at the prospects facing the Supreme Court.  Here are excerpts:

In June, when the Supreme Court stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage, many thought the court had bought itself several years before it had to confront the question again. 

But the issue will soon return to the court, with officials in Utah saying that within the next few days they will ask the justices to block a trial judge’s decision last week that allows same-sex couples to marry there. 

“If the court thought it was going to get a few years,” said Michael C. Dorf, a law professor at Cornell, “I think they were naïve.”

[T]he pace of change has been very rapid. When the justices heard arguments in the cases in March, same-sex marriage was permitted in nine states and the District of Columbia. If the Utah decision stands, the number of states allowing such marriages will have doubled, to 18. 

Michael J. Klarman, a historian at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage,” said he had expected rapid change — but not this rapid.   “The Utah decision is unique,” he added, “because it’s in a state with so much opposition to same-sex marriage. In Utah, you’re going to have a real experiment in backlash.” 

The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days. 

The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, . . . Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”

Whatever the Supreme Court does regarding a stay, it is hard to see how it could hear the larger issue in the case in the current term. But a decision in the court’s next term, culminating in a decision in June 2015, is entirely possible. 

In the meantime, Judge Shelby’s decision will certainly get the justices’ attention. He acknowledged, for starters, that the Supreme Court’s 5-to-4 decision striking down part of the Defense of Marriage Act, United States v. Windsor, could be read to support either side in his case.

In Windsor, the two interests — states’ rights and gay rights — pointed in the same direction. They were, Judge Shelby wrote, “allied against the ability of the federal government to disregard a state law that protected individual rights.” “Here,” he continued, “these interests directly oppose each other.” 

To resolve the tension, Judge Shelby looked to Justice Antonin Scalia’s dissenting opinion in Windsor.

“Somewhere between the next two and six years, the court will be ready to do it,” Professor Klarman said, referring to establishing a constitutional right to same-sex marriage, “assuming the composition of the court does not change.” 

As for the pace of change, Professor Dorf said, “it’s faster than the majority in Windsor had expected but not faster than Justice Scalia anticipated.” 

Ultimately, the Court will have to decide if it will uphold gay marriage nationwide or be viewed by future generations akin to the Court in its infamous rulings of the past that upheld slavery and then later the Jim Crow laws.