7 questions & answers: the Supreme Court & gay marriage
Following are commonly asked questions about the Supreme Court’s two days of arguments in the gay marriage cases.
What issues were the justices deciding?
The constitutionality of two laws: the federal Defense of Marriage Act (DOMA) and California’s Proposition 8. Passed and signed into law in 1996, DOMA has two main sections: 1) It gives states the option of not recognizing gay marriages from other states and 2) it defines marriage for federal purposes and federal benefits as being between a man and a woman. Only the second section of DOMA was in front of the court. But even though the court did not deal with the DOMA section that affirms states’ rights, it nevertheless could get to that issue with the Prop 8 case. Prop 8 is a constitutional amendment, adopted by California voters in 2008, that defines marriage as between a man and a woman. California is one of 30 states that define marriage within the state constitution in the traditional sense. Another 11 states define it that way via statute. Nine states recognize gay marriage.
What are the possible outcomes of the cases?
If the court strikes down both DOMA and Prop 8, then gay marriage could be legalized in all 50 states. But there are other possible outcomes, including the upholding of both as constitutional. Based on the oral arguments heard by the court, though, that type of sweeping victory for social conservatives seems unlikely. If the court arguments are any indication, it seems more likely that the court will overturn the DOMA section at issue while at the same time not even ruling on the constitutionality of Prop 8, thus keeping the issue — for now — a state matter. Predictions, though, can be tough, as proven in 2012 when most court-watchers thought the justices would overturn the historic health care law, only eventually to see the court uphold it.
If the court avoids ruling directly on Prop 8, what happens to the issue nationwide?
A ruling that skirts the constitutionality of Prop 8 would limit the lower court’s overturning of Prop 8 to California. Under one scenario, the court could rule that ProtectMarriage.com — the official sponsors of Prop 8 — did not have “legal standing” to appeal the decision after Prop 8 was overturned by the federal district court. “Standing” became an issue when the governor and attorney general of California chose not to appeal the decision. Politico.com reported that under that scenario, the district court’s ruling “could end up being limited to only the couple of counties and state officials named as defendants in the lawsuit.” The court also could dismiss the petition as “improvidently granted” — that is, justices could say it should not have taken the case in the first place. Justice Anthony Kennedy — a swing vote — seemed to open the door for either scenario when he said there’s a “substantial question” on standing and in the next sentence said, “I just wonder if the case was properly granted.” A majority of the justices seemed to be in favor of punting on Prop 8’s constitutionality.
Where did the justices fall on the broader question of gay marriage legalization?
Kennedy, as he often does, made comments friendly to both sides. Conservatives were heartened to hear him express concern about going into “uncharted waters” and to note that “we have five years of information” on the impact of gay marriage “to weigh against 2,000 years of history or more” on the impact of traditional marriage. But liberals pointed out that Kennedy also seemed concerned about the “legal injury” to the “40,000 children in California” who live with same-sex parents and want “their parents to have full recognition and full status.” But, as previously noted, Kennedy also implied that the court should not be considering Prop 8. The court’s liberal wing — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elana Kagan — all made comments friendly to gay marriage legalization, with Kagan rejecting the notion that traditional married laws can be tied to procreation. But all four justices also questioned whether the court should be hearing the Prop 8 case. And Sotomayor heartened social conservatives when she said in the DOMA arguments that “states control” marriage, although she said it in the context of the DOMA case, not Prop 8. Three of the four members of the court’s conservative wing — John Roberts, Antonin Scalia and Samuel Alito — expressed concern about gay marriage legalization. Roberts said marriage, throughout history, “developed to serve purposes that, by their nature, didn’t include homosexual couples.” Conservative bloc member Clarence Thomas did not ask questions, as is his custom.
Which side won oral arguments — liberal or conservative groups?
Potentially both, simply because there are two laws at play. If the DOMA section in question is struck down, it would be a win for social liberals and would grant gay couples in the nine states where gay marriage is legal the federal benefits of marriage. But if the court also gives deference to states on the issue of marriage, it would leave in place traditional laws in the remaining 41 states — with the possible exception of California. That would be mostly a win for social conservatives. Kennedy made comments in supports of state rights.
When will the court issue its decisions?
Most likely in June.
Where is public opinion on the issue?
Polls are showing a small majority in support of gay marriage, although there’s evidence that polling is off, at least some. That’s because — as the argument goes — a portion of the population is giving only the “socially desirable” answer to pollsters. Chris Stirewalt, digital politics editor for Fox News, noted in a March 26 column that among the approximately 30 states that have voted on traditional marriage, pre-election polls “have underestimated support” for the traditional side in all but one instance. He quoted New York University political science professor Patrick Eagan as saying pre-election polls, by average, underestimate support for traditional marriage laws by 7 percentage points. “There is more to this than simply the difference between the difference between the electorate and the general population,” Stirewalt wrote. “Some folks are lying to pollsters.”
This article originally appeared in Baptist Press March 27, 2013.