Will Gay Marriage Advocates Get Support from the Supreme Court?

Mar 30, 2010

By Kristen Friend, staff U.S. Supreme Court writer – March 30, 2010

Social issues have a unique ability to draw voters out to the ballot box regardless of whether the controversy at hand has any real effect on the lives of those casting their votes. Same sex marriage is no exception to this trend.

The question of whether gay and lesbian couples should be able to marry and enjoy all of the legal and purported emotional benefits of the institution has taken the forefront in state legislatures, courts and on the ballot since Massachusetts became the first state to legalize same sex marriage in 2004. Following that initial victory for supporters of gay marriage, results have been mixed. Four more states and the District of Columbia have legalized gay marriage, while opponents scored a number of electoral victories, most notably the passing of Proposition 8 making gay marriage illegal in California. [1]

While both supporters and opponents of gay marriage are continuing to focus efforts on winning public support and ultimately votes in favor of their positions, others are turning to the courts. Whether or not this is a good strategy remains to be seen, perhaps sooner rather than later. It is beginning to appear progressively more inevitable that the Supreme Court will be forced to weigh in on the gay marriage issue. And with little precedent, and a Court that has proven a recent willingness to overturn precedent at that [2], both sides are guessing at where the Supreme Court will come down on the issue.

The Supreme Court has weighed in on few cases specifically involving gay marriage, leaving the door open to speculation about what arguments, if any, will hold water with individual justices. And recent sessions have not clarified the issue. Since the Supreme Court began taking cases in its opening session in January of 2010, it has both agreed to hear and refused to intervene in three cases involving gay marriage and gay rights issues. [3]

Most recently, in early March, the Court declined to issue a stay on a Washington DC act legalizing gay marriage, thus removing the final hurdle and allowing gay marriage to become legal in the District. Chief Justice Roberts, acting as Circuit Justice for the DC Circuit, wrote the opinion. In it, he stated that the Court did not historically interfere in matters of “local concern” in the District of Columbia. However, he left the door open to future challenges to the law, stating, “[T]he D. C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.”  [4]

The Court has also agreed to hear two cases concerning gay rights, although only one is related to the issue of gay marriage. The first, Snyder v. Phelps, et al., involves the Westboro Baptist Church, headquartered in Topeka, Kansas, and famous for its nationwide, hate-filled, ant-gay protests at military funerals. Specifically, the Court will decide whether Albert Snyder, whose son, Marine Lance Corporal Matthew A. Snyder was killed in Iraq, is entitled to the $5 million settlement initially granted to him by a Maryland court. The settlement was granted on the basis of “intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.” [5] Arguments are scheduled to be heard during the October 2010 Supreme Court session.

The second case concerns Referendum 71, a Washington state ballot initiative asking voters to weigh in on a bill granting domestic partners the same benefits as legally married couples. The Washington legislature approved the bill, which was then put on the ballot under a provision of Washington law allowing a public vote on bills approved by the legislature if enough signatures are gathered. The anti-gay marriage group, Protect Marriage Washington, gathered the requisite number of signatures in the hopes that voters would veto the legislature’s decision. The referendum was ultimately approved, granting legal protections to domestic partners. [7]

The issue before the Supreme Court is whether the names of the individuals who signed the petition asking Referendum 71 to be subject to a veto vote can be released as public record. Although Attorney General Rob McKenna initially announced the names would be released, Protect Marriage Washington won a temporary stay from U.S. District Judge Benjamin Settle on the basis that releasing the names could infringe upon the First Amendment free speech rights of the signers. Project Marriage Washington argues that signers of the petition would be subject to attacks by supporters of gay marriage and that the release of the names may discourage people from exercising their right to political free speech in the future. [6]

Both advocates for government transparency and gay rights activists argue the names should be made public. The 9th U.S. Circuit Court of Appeals reversed the District Court decision, allowing the release of the names as a matter of public record. Upon appeal to the Supreme Court, Justice Kennedy intervened to place a temporary stay on the release of the names. The Supreme Court then agreed to hear arguments in the case, which are scheduled for late April. [6]

With two cases on the docket and one turned down, what indication has the Court given about its proclivity to support or oppose gay rights and gay marriage on a federal level? Unfortunately for those with a stake in the issue, not much. To date, the court has only directly intervened in two cases involving gay marriage: Referendum 71 in Washington and Hollingsworth v. Perry in California.

In Hollingsworth, the Court stepped in to prevent the public broadcast of arguments in a case challenging the constitutionality of Proposition 8. Initially, U.S. District Chief Judge Vaughn Walker announced the trial would be streamed online (on a delay), allowing oral arguments to be viewed by the public. In a 5-4 decision, the Supreme Court barred the trial from being broadcast, stating that opponents of gay marriage might be subject to harassment should their identities be made public. Some pundits see this as a bad omen for supporters of gay marriage in that it indicates the Court is looking at the argument from the point of view of the opposition. It is the opposition that are the victims and may be harassed, not homosexuals. [8]

In both of these cases, and the case involving the hate-filled rhetoric of the Westboro Baptist Church, the primary issues involved are Free Speech and Privacy. Gay rights advocates and opponents are involved, but the issue of gay rights and gay marriage is at best tangential. And Roberts’ refusal to intervene in the Washington DC case was procedural, giving no real indication of his stance on the constitutionality of the DC law.

Two justices, Antonin Scalia and Clarence Thomas, can be counted on to vote against gay marriage in any form, no matter how strong the legal argument(s) in its favor may be. Both Justices dissented in the 2003 case Lawerence v. Texas, which struck down a Texas anti-sodomy law. In his dissent, Justice Scalia wrote, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”  [9]

Justice Scalia also wrote that the logic in Lawerence could be extended to same-sex marriage, an outcome that he found less than desirable.

Scalia and Thomas also dissented in the case Romer v. Evans, which struck down a Colorado amendment as unconstitutional because it singled out homosexuals as an unprotected class. While the majority found there was no “rational basis” for the amendment, Scalia and Thomas’ dissent implied gays and lesbians could be singled out for unequal treatment. [10]

Justice Alito, who has been nicknamed “Scalito” by some because of his similarity to conservative Justice Antonin Scalia, would more than likely join these two in any decision. [11]

For the most part, the Court has been unwilling to hear cases involving gay marriage precisely because they generally apply only to local laws. When the Maryland Court of Appeals upheld Maryland’s ban on gay marriage in 2007, there was no place for the case to go from there. Similarly, if gay marriage advocates do bring a case before the New Jersey Supreme Court, as is being discussed, an appeal of the outcome of that case would most likely not be heard by the US Supreme Court.

A case with the potential to end the guessing game, at least for the time being, is currently under deliberation by Judge Vaughn Walker in San Francisco. Perry v. Schwarzenegger is the second case to be filed in the state of California challenging the constitutionality of Proposition 8, and it is widely believed the case will make it to the Supreme Court. The first case challenging the constitutionality of Proposition 8, Smelt v. United States of America, was dismissed by the Obama Justice Department on the grounds that the plaintiffs did not prove they suffered real harm by not being allowed to marry. [12]

Two attorneys, conservative Theodore B. Olson and democratic trial lawyer David Boies, who were opposing counsel in Bush v. Gore, brought the case against Proposition 8. The prosecution aims to prove that the basis for the gay marriage ban in California is discriminatory, reflecting nothing but “prejudice or animus” [13] against gays and lesbians, and that the state has no compelling interest in preventing same sex marriage.

According to Boise, “We will show that prohibiting gays from marrying has no redeeming social benefit, that permitting gay marriage does not in any way undermine heterosexual marriage.” [14]

Boise and Olson also point to the Court’s decision in Loving v Virginia, the landmark 1967 case that struck down laws banning interracial marriage. Loving established a fundamental right to marry, with the Court writing in its decision, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”  [15]

Referencing the Loving precedent and that of Brown v Board of Education (abolishing “separate but equal” schools), Olson argues, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and … when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” [16]

Arguments in Perry ended on January 27, and a decision was expected by mid March. The case is now being held up as some outside groups that have been ordered to disclose emails and documents related to their opposition to Proposition 8 are fighting the court order.

All eyes are on Judge Walker, his inevitable landmark decision, and the precedent he will set when he decides the constitutional fate of Proposition 8. No matter what the outcome, the case will be appealed to the 9th Circuit Court of Appeals and ultimately to the Supreme Court. Since the 9th Circuit Court jurisdiction covers 7 states in the western United States and Alaska, and since the plaintiff’s arguments concern issues beyond local law, it is highly unlikely the Court will refuse to hear an appeal.

While the case could be a major victory for gay marriage advocates, several groups friendly to the cause disapprove of the decision to bring a case at this time. The move is risky, with little precedent, few laws on the books protecting gay marriage, and the fate of the case most likely resting, as usual, on “swing” Justice Anthony Kennedy. If the plaintiffs ultimately prevail, the constitutionality of marriage bans in several states will be in question. However, if they fail, gay marriage rights could suffer a serious setback that the movement may not be able to overcome for decades.

A joint statement published by several leading LGBT right groups earlier this year urged caution, stating that victory before the Supreme Court was far from a sure thing. In the statement they argue, “The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law.” [17] To date, 31 states have put gay marriage up for a vote, and all 31 have voted no. If public opinion does act as a bellwether, gay rights advocates may have reason to worry.

With a decision in Perry expected in the coming weeks, it seems as though the Supreme Court may finally get a chance to set a precedent for the constitutionality of gay marriage bans. A case in Boston challenging the constitutionality of the Defense of Marriage Act may also make its way to the Supreme Court on a similar time frame. Three of the Justices are relatively young and have not weighed in on any related cases. While a 5-4 decision may seem inevitable, court watchers and gay rights activists are far from certain which way the deciding vote may fall.


  1. http://en.wikipedia.org/wiki/Same-sex_marriage
  2. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html, The New York Times, Justices, 5-4, Reject Corporate Spending Limit
  3. Supreme Court Docket, http://www.supremecourt.gov/
  4. http://www.docstoc.com/docs/27405774/Jackson-v-DC-Board-of-Elections/, decision
  5. http://www.scotusblog.com/2010/03/court-to-rule-on-funeral-pickets/, SCOTUS Blog, Court to Rule on Funeral Pickets
  6. http://seattletimes.nwsource.com/html/localnews/2010094187_apwadomesticpartnerships2ndldwritethru.html, Seattle Times, Justice Kennedy blocks release of R-71 names
  7. http://ballotpedia.org/wiki/index.php/Washington_Referendum_71_%282009%29
  8. http://articles.latimes.com/2010/jan/17/nation/la-na-court-gay-marriage17-2010jan17, Los Angeles Times, Gay marriage supporters fear Supreme Court’s ruling was an omen
  9. http://www.law.cornell.edu/supct/html/02-102.ZD.html, Dissent, Lawerence v. Texas
  10. http://en.wikipedia.org/wiki/Romer_v._Evans
  11. http://www.slate.com/id/2129107/, Slate.com, Alito or Scalito? If you’re a liberal, you’d prefer Scalia.
  12. http://www.acslaw.org/taxonomy/term/735, ACS Blog
  13. http://www.slate.com/id/2242957, Slate.com, Who Will Win the Gay Marriage Trial?
  14. http://articles.latimes.com/2010/jan/11/local/la-me-prop8-trial11-2010jan11/2, Los Angeles Times, Prop. 8 trial to include unprecedented testimony
  15. http://en.wikipedia.org/wiki/Loving_v._Virginia
  16. http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot, The New Yorker, A Risky Proposal
  17. http://www.aclu.org/lgbt-rights_hiv-aids/why-ballot-box-and-not-courts-should-be-next-step-marriage-california, joint statement
  18. http://commons.wikimedia.org/wiki/File:Fresno_-_Prop_8_Rally.jpg – Photo by Richard Johnstone

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