The next big Supreme Court controversy: same-sex marriage

National Constitution Center

The Supreme Court Justices have left a steaming Washington – a summer heat wave and a searing new dispute over how they made the health care decision – but no sooner had they departed than the next major controversy arrived.

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Awaiting them at the end of summer will be the issue of same-sex marriage, as emotionally charged as any issue they faced even in the difficult term just ended.

As if to prolong the partisan conflict that surrounded the health care decision, President Obama’s Justice Department is facing off in the new cases against the Republican leadership of the House of Representatives.   They will be jousting over the Defense of Marriage Act (DOMA), the 1996 law that defines marriage for all federal purposes (benefits included) as only the union of a man and a woman.  More than 1,000 federal laws are involved.

In the background is the deep discontent in the Republican-controlled House of Representatives with Attorney General Eric Holder, due in part to the fact that he led the administration into changing the government’s position from a defender to a challenger of DOMA.   The House’s citation of him for contempt of Congress actually was prompted by a list of grievances, but his stance on gay rights was a prominent one.

In fact, the House GOP leaders – who have assumed the defense of DOMA in the government’s place – complained to the Supreme Court as part of their new appeal that the administration has shirked its duty to come to the defense of a federal law passed overwhelmingly in the House and Senate.

Perhaps the only thing that might diminish the political intensity of this new controversy as it unfolds in the court is that the timetable for the Justices to issue a decision is likely to be after the November election.

Once again, though, the Supreme Court’s focus is not supposed to be on politics – here, the politics of gay rights generally or of same-sex marriage in particular.  Rather, the focus is to be on whether Congress acted unconstitutionally in excluding gay couples who are legally married under their owns state’s laws from marriage-related benefits, such as tax breaks.

That exclusion has not fared well in lower federal courts, and that has set the stage for the House GOP leaders to urge the court to salvage DOMA.   They filed an appeal the day after the court’s term ended last week.  On Tuesday, the administration filed two appeals of its own, one in the same case from Boston in which the House GOP chiefs are involved, and one from California.

Even though it has been on the winning side in the lower courts, the administration told the court it was the government’s duty to lay the controversy before the justices.  But government lawyers also urged the court to assure the House Republican leadership that they can take full part in the court’s coming review to give DOMA a full defense.

Since changing its position on DOMA last year, the administration has been engaged in something of a straddle: even while challenging the constitutionality of DOMA in a variety of lower courts, it has said repeatedly that, while the law remains on the books, it will go on enforcing it.   Even though DOMA has been struck down several times recently in lower courts, none of those rulings has been put into effect, so legally married same-sex couples are still not benefiting from their victories.   That is likely to be the way the situation stands until the court issues a final decision.

As usual, there is no absolute guarantee that the Supreme Court will agree to take on the role of settling the DOMA controversy.  But all signs point to a willingness to do so; the court seldom passes up a case in which a lower federal court has nullified a federal law.

Not yet at the court, but coming soon, will be another gay marriage case, the best-known such case in the U.S.  That is the test case on the constitutionality of California’s 2008 voter-approved measure, “Proposition 8,” banning such marriages in California.  That appeal will be filed by the proponents of the measure, standing in for California state officials, who have refused to defend Proposition 8.   The chances of that being reviewed by the court appear to be somewhat slimmer, because the case has been pared down in size from what it was at the beginning: a broad claim of a constitutional right for gays and lesbians to marry.

At this stage, it is unclear how wide a final court ruling on gay marriage will turn out to be.   Those who sued to challenge DOMA are already married, so they are not seeking a new constitutional right to wed,  However, the House GOP is mounting an energetic campaign to bar all such lawsuits that claim that bans on such marriages violate the Constitution’s guarantee of legal equality.  The legislators are relying on a one-line ruling by the Supreme Court in 1972, upholding a Minnesota Supreme Court ruling that the Constitution does not protect a right to same-sex marriage.

The court is not expected to take any action on any of the new cases during its summer recess.  But the new cases will be ready for the justices when they reassemble for the new term that opens October 1.  A grant of review then would probably put the cases on a schedule to be heard in January or February, building toward a final ruling in June.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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