The next few months could prove to be the most history-making ever in the marriage-equality movement.
On March 26 and 27, the U.S. Supreme Court will hear oral arguments in challenges to California’s Proposition 8, a voter referendum that overturned the state’s marriage-equality law, and to the Defense of Marriage Act, which prevents federal recognition of same-sex marriage.
There is a range of possible outcomes for both cases, and many LGBT pundits are predicting a mixed bag.
The most sweeping pro-LGBT possibility is that the court will declare a constitutional right to marriage for same-sex couples, which is part of the argument of the Prop. 8 case, Hollingsworth v. Perry.
“If that happens, every state has to recognize same-sex marriage,” said Mazzoni Center legal director David Rosenblum.
The odds of that happening, however, Rosenblum predicted, are “very slim.”
“You have to look at what the court’s done in the past, and they like to sort of let states be, the word they use is the ‘laboratory.’ So we’re at nine states now with marriage equality and we’ll have more soon, but I don’t know if it’s enough yet to tip scales to have the court actually proactively require that. But they might go longshot on us and I hope I’m proven wrong. The Supreme Court has done this before, like with interracial marriage where some states said it was legal and others didn’t, and the Supreme Court said, ‘Of course you can get married.’ But when that happened, most people in the country were on board with that. Even though they’re not supposed to be watching the cultural tides, they often do, and I don’t know if they’re going to be that progressive and ahead of the states.”
Marriage could be restored to California if the Supreme Court finds that the Prop. 8 backers that are serving as defendants do not have standing, which would allow the lower court’s and appeals court’s rulings invalidating Prop. 8 stand. Or, if the court finds the defendants do have standing, it could rule narrowly on whether California violated its residents’ rights with Prop. 8.
In the DOMA case, Windsor v. United States, the court could strike down the federal ban on same-sex marriage. That decision wouldn’t mandate marriage equality across the nation but rather could enable same-sex married couples to receive the federal rights and benefits afforded to heterosexual married couples.
“I think there’s a strong possibility that the court will say that the federal government needs to recognize whatever a state says; that those states that have marriage equality will give you all the federal rights that are connected to marriage,” Rosenblum said.
Such a ruling, however, would lead to a host of new questions, such as would residents who live in states without relationships recognition, like Pennsylvania, be eligible for federal benefits if they get legally married in a state like New York, which has marriage equality.
“The gigantic question is will they look at where marriage was celebrated or will they defer to where you’re a resident,” Rosenblum said. “It’s not clear what they’re going to do.”
If the court strikes down DOMA and reaffirms states’ rights on marriage equality, Rosenblum said he expects a flurry of state-court filings.
“At Mazzoni Center, we’re looking at creative ways of challenging our state law, regardless of what happens with the Supreme Court. We don’t expect we’re going to get a ruling that everyone can get married everywhere, so without that, I think we’ll have to have a state-by-state attack like we did with the sodomy laws. But right now I think everyone’s doing the wait-and-see for what the Supreme Court says and after that, I think there will be a lot of activity on the state-court level.”