The Supreme Court Takes on Same-Sex Marriage

By Derek Davis, J.D., Ph.D.

The Cases at Issue

On March 26, the U.S. Supreme Court heard oral arguments in a pair of cases that could set the ground rules for same-sex marriage in America. In Hollingsworth v. Perry, the Court heard a challenge to California’s Proposition 8, a ballot measure approved by California voters in 2008 that banned same-sex marriage. The High Court also heard a challenge (United States v. Windsor) to the federal Defense of Marriage Act (DOMA), a 1996 law that bars the federal government from sanctioning same-sex marriage.

The Windsor case is likely to be decided on constitutional grounds. The case does not directly address the question of whether the U.S. Constitution protects the right of same-sex couples to marry, but whether the federal government’s treatment of gays and lesbians under DOMA discriminates against them and is a violation of the equal protection guaranteed by the 14th Amendment of the Constitution. The Federal 2nd Circuit Court of Appeals held that DOMA is in fact discriminatory.

The Perry case, however, might provide the Court with a better opportunity to address the central question of whether the U.S. Constitution guarantees same-sex couples the right to wed. Since the case involves a decision by the state of California to prohibit gays and lesbians from marrying, the constitutional principle of federalism—the allocation between the federal and state governments of various areas of law—is at issue and the Court can determine whether the traditional assignment to the states of family and domestic matters is appropriate. The Court might simply determine that same-sex marriage is a state matter and leave in place the state’s ban on same-sex marriage. Such a ruling would affirm the validity of the action taken by nine states so far—Massachusetts, Connecticut, Iowa, Maine, Maryland, New Hampshire, New York, Vermont and Washington State–as well as the District of Columbia; thirty others have chosen to explicitly endorse traditional marriage. The Court could, however, rule that same-sex marriage is or is not protected by various provisions in the Constitution, such as the 14th Amendment liberty clause. Such a ruling would be binding on all the states and require many states to alter the policies they have already adopted.

Thinking about the Meaning of the Cases

These cases touch the moral core of the United States and its people. Like past decisions affecting slavery (Dred Scott v. Sandford), segregation (Brown v. Bd. of Education), school prayer (Engel v. Vitale), and abortion (Roe v. Wade), the decisions in these two cases are sure to be divisive since they will affect the future of yet another fundamental American institution: marriage.

Many Americans are hoping that the Court will avoid ruling on the constitutional right to same-sex marriage and hold that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. Indeed, the Court has held that "regulation of domestic relations" has "long been regarded as a virtually exclusive province of the States" (Sosna v. Iowa, 1975). The Court could follow this precedent in Windsor—holding that DOMA illegally invades the reserved powers of the states, and make a similar ruling in Perry.

But while this approach is laudable in its attempt to vest authority in the people, giving them the right to determine their own course of action on major social issues, it has some drawbacks. In the segregation, school prayer, and abortion cases cited above, the High Court made constitutional rulings that were binding on all the states. This had the advantage of making uniform the law affecting all American citizens regarding three controversial and divisive issues. Americans were forced to think alike and over time the decisions became imbedded in American social traditions and morality. This prevented a civil-war like division of the nation, which we saw partially as a result of the Dred Scott case, whereby the South was enabled to continue its slavery practice. But the resulting scenario in which some states observed slavery, and some did not, eventually split the nation and led to the Civil War. Granting states the right to set their own course regarding same-sex marriage practices could have the same divisive impact, leading to disastrous consequences. Is not uniformity of law on major social issues a better practice?

The same-sex marriage cases are not generally considered to have church-state implications. Many same-sex couples wish to marry and believe the practice is sanctioned by the Bible. For example, a common belief among many gays and lesbians is that Old Testament figures David and his friend Jonathan maintained an intimate relationship. Consequently, for these citizens, religion is a basis for their belief in same-sex marriage. Since the Establishment Clause is designed to prevent the advancement or prohibition of religion in state action, the Court, if indeed it took into consideration the Establishment Clause, arguably should not consider religion in its decision. This would lead one to expect the Court to protect same-sex couples’ religious foundation for their chosen lifestyles, but there is no guarantee the Court would see the case this way. The Court ignored the pleas of Mormons in the 19th century that there was a legitimate biblical foundation for their belief in polygamy, and that the Free Exercise Clause protected their beliefs and lifestyle. The Court reviewed the history of marriage, finding that the Western tradition was one of monogamous marriage, sanctioned mostly by, ironically, the same source cited by the Mormons, the Bible.

If public opinion counts for anything, the Court will rule in favor of same-sex marriage. According to the Pew Research Center, public attitudes toward same-sex marriage have changed in the last ten years. A 2003 poll found that most Americans (58%) were opposed to allowing same-sex marriage, and just a third (33%) was in favor. A March 2013 poll, however, confirmed a significant reversal since 2003: 49% now support same-sex marriage and 44% are opposed.

Predicting the outcome of Supreme Court cases, however, is something gamblers have learned can rarely be achieved with much accuracy. But whatever the outcome, life in America is sure to be shaped significantly by the Court’s decision for the foreseeable future.