Marriage equality in the Supreme Court

With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.

The question is how that affects the SCOTUS’s decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.

Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?

The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we’re back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).

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4 Responses

  1. Joe says:

    I would think even in the somewhat playing with the numbers death penalty jurisprudence NINE states isn’t enough to state the nation-wide trend. Take the DOMA case, toss in some nice Kennedy sounding rhetoric with SSM application & wait.

  2. Not just the Second Circuit– the First Circuit also held DOMA unconstitutional a while back. In fact, there’s no circuit split on the issue, and every court to confront the constitutionality of DOMA since February, 2011 has invalidated it.

  3. mls says:

    Actually, it can (and will) be argued that the results on Tuesday cut against finding a right to gay marriage because they show that gays have ample power to compete in the political process. Of course, neither this nor any other legal argument will determine the result in the case. Justice Kennedy will decide where he wants to come out, and then words will be written to justify the result.

  4. vic fedorov says:

    I define marriage as an institution of reproduction.