Same-sex marriage in the US Supreme Court

Del Dickson, a political science professor and expert on the Supreme Court, analyzes the courses of action the court could take in deciding two cases about gay marriage.

By Matt Hose

At the end of March of this year, the Supreme Court of the United States began to hear arguments on two landmark cases dealing with gay marriage. One concerned Proposition 8 in California, which makes it illegal for homosexuals to get married in the state of California. The other concerned the Defense of Marriage Act, a federal law passed by Congress that denies the benefits of heterosexual married couples to legally married homosexual couples.

The court cases caught on in the viral market, as many students changed their Facebook profile pictures to a red equals sign, symbolizing solidarity with the movement for homosexual marriage. On the other side, some posted pictures of a man and woman holding hands, with some variants therein.

Now, a month after the nine justices of the Supreme Court heard the initial arguments, political science professor Del Dickson is taking a step back and analyzing the courses of action the court could take when making its decision in June, within the context of past decisions of the Court. Dickson teaches constitutional law, and one of his main areas of research is the U.S. Supreme Court.
Dickson said that it is always interesting to see the timing of the cases that the court takes. He said that there could be several reasons why the court decided to take up both cases at this time.
“A reason for taking up the Prop 8 case is that it’s unique that California prohibited gay marriage, California allowed gay marriage, and then California went back to prohibiting gay marriage again,” Dickson said. “That’s rare where rights are given to a group and then taken back from the group. I suspect that that raised the antenna of the Supreme Court, that’s a situation they want to address.”
Nevertheless, Dickson said that the reasons for the court taking up specific cases is not often clear, sometimes until even 20 years after the fact.

“The Supreme Court moves in mysterious ways,” Dickson said.

While many Californians are hoping that the court will resolve Proposition 8 definitively by either striking it down or upholding it, Dickson said that the court could resolve the case in many ways that would “disappoint everybody.”

He said that the court could get cold feet and decide that the time is not right to definitively decide on Proposition 8, thus bouncing it back to the Court of Appeals to make a decision. He said this idea is plausible because of the makeup of the court, which he called a more “cautious court” than most other Supreme Court make-ups.

“The court is incredibly cautious,” Dickson said. “Even the supposedly liberal justices who you know are personally opposed to sexual discrimination [are] saying the court can’t move too quickly on this. So they’re being torn in all sorts of different ways: what they think the constitution requires, what they think is personally right, and what is good for the court. That makes their calculations very complicated and it means that you very often get mixed messages coming out of the court.”

Nevertheless, he doesn’t think that the court will simply uphold Proposition 8; instead, they will likely bounce it back to the lower courts or overturn it entirely.

“My own guess is that Prop 8 is not going to be upheld,” Dickson said. “They are not going to say ‘no problems with Prop 8. Carry on California.’ What they do with it, however, is uncertain.”

If the Court decides to send the case back to the lower courts, Dickson said that the proposition is as good as dead. The court could do this for a number of reasons, possibly saying that it does not have jurisdiction over the state, which traditionally has made laws about marriage.

“[In that case], Prop 8 is probably a dead man walking, because the California courts have been critical of it,” Dickson said. “The federal court of California and the 9th Circuit court of Appeals said that it was not proper. So if the Supreme Court says nothing on Prop 8, it is probably dead.”

Nevertheless, Dickson believes that Justice Anthony Kennedy holds the swing vote for the court. Kennedy has traditionally taken conservative positions on many cases; however, according to Dickson, Kennedy has said that he has not even heard a rational argument for why gay marriage should be prohibited. He also has been consistently in favor of gay rights in his stint on the court.

Though he has supported gay rights, Kennedy also has seemed hesitant to be a lawmaker from the bench since the gay rights movement has gained steam. According to Time Magazine, Kennedy said that it might be ill-advised to plunge too quickly into redefining the meaning of marriage, which has been defined as a union between a man and woman for what he described as over 2,000 years.

“[The] sociological information is new,” Kennedy said. “We have five years of information to weigh against 2,000 years of history or more.”

Dickson agreed that the movement toward gay rights has been incredibly swift.

“What’s happened here [with gay rights] is there has been just a rapid, peaceful sea change,” Dickson said. “It’s been extraordinary. It’s unprecedented that I know of. We have discriminated against gays as a Western society for 2,000 years. In the course of 10 years, gays and lesbians have gone from being a very unpopular minority to being a very popular minority. The political attitude in this country has just flip-flopped, and it’s been amazing.”

Nevertheless, he said that this change of culture could have the opposite effect on the court.

“Ironically, that might move the court to be more cautious, because they might say, ‘why are we going to step out in front of this? The political process seems to be headed in this direction anyway. Why not let Congress handle it? Why not let the states handle it?”

Although he says that the fate of Proposition 8 in the Supreme Court is uncertain, Dickson feels more certain that the Defense of Marriage Act will be overturned by the court. He thinks this is the case because DOMA is a national act passed by Congress that applies to every state. Since the statutes of marriage are usually left up to states to decide, the act is encroaching on the states’ powers to govern.

“DOMA is a federal act that infringes on states’ marriage laws,” Dickson said. “So both liberals and conservatives are or they ought to be skeptical of that kind of law. It’s federal law going into a place that federal law doesn’t traditionally go. The majority [of justices striking the act down] might be bigger than 5-4.”

Specifically, DOMA was designed so that states who do not recognize gay marriage would not have to recognize the benefits of homosexual couples who were married in other states or outside of the country. The case before the court now, United States v. Windsor, involves a woman who was married in Canada. Her wife died, and she was forced to pay over $350,000 in taxes for her wife’s estate because of the federal law, even though gay marriage was legally recognized in her home state of New York.

The court is expected to issue a ruling on both cases in June.

Dickson said that it is not uncommon for the Supreme Court to take up and rule on two cases involving the same issue. Since one case involves a state’s ban on same-sex marriage and the other case involves a federal denial of benefits to same-sex couples, Dickson said that the court could issue an all-encompassing decision “to decide for the whole country.”

”They [the court] often do that, where they combine cases and they figure that they can decide kind of a broad issue,” Dickson said.

However, despite the ambition of taking up both cases, Dickson said that the court is now getting cold feet as it feels the decision looming, and that it could decide that now is not the right time to decide on the issue.

“They seem to be having second thoughts about it,” Dickson said. “Which is why they were all asking on the Prop 8 case in particular, ‘Is this case proper to hear? Should we even decide this case?’”
Explaining this attitude of the court, Dickson compared their disposition to that of a person going skydiving.

“When you sign up to go skydiving…it sounds like a great idea a year away,” he said. “And then as that time comes where you’re up in the plane and you’re ready to jump, you’re thinking, ‘wow maybe I was silly to do this.’ I think the court was brave at a distance, but is having second thoughts now that it’s up close.”

In the end, Dickson looks forward to the day that the country finds out what the court decides on this case.

“They have this opportunity to make a clear statement to the entire country dealing with both state law and federal law about gay marriage,” Dickson said. “At the end of the day, whether they take advantage of that opportunity, that’s a question we won’t know until late June.”