Who will celebrate its decisions? U.S. Supreme Court to hear gay marriage cases

Do you perceive it as a good sign for pro or anti-gay marriage camp?


Kenneth WaldDistinguished Professor of Political Science, University of Florida

With this Supreme Court, one can never be certain if a willingness to hear a case means the Court wants to achieve a particular outcome or not. The two cases have different legal issues. The California case asks whether that state can prohibit gay marriage without violating the requirement of equal protection in the constitution. The New York case asks whether the federal government can deny legal benefits to same sex couples that are already available to heterosexual couples. The Court could issue sweeping rulings that favor gay marriage, that limit it, or rule on narrow grounds to avoid making a precedent. As is usually the case, it’s likely to depend on Justice Kennedy.

I think the broader significance is that this takes place in a country which has moved from criminalizing gay sex just a few decades ago to a nation where there is broad support for gay marriage. Symptomatic of that change, one of the two attorneys in the California case, Theodore Olson, was the Solicitor General under George Bush and an avowed conservative. More and more conservatives have come to support gay marriage on both grounds of equality and privacy. It’s even possible that one of the usually reliable members of the conservative bloc on the Court, Justice Roberts, might have been swayed by these arguments.

While the gay rights movement could lose, especially if the federal DOMA act is held unconstitutional, even negative decisions wouldn’t prevent other states from legalizing gay marriage.

Ken Sherrill, Professor Emeritus, Department of Political Science, Hunter College , CUNY

I think the court had no choice but to take the challenge to DOMA because federal courts of appeals had struck down a federal law as unconstitutional. And even in the California case, refusal to hear the case would have meant that marriages could start again in California.

No one is sure which way the court will decide. My guess is that the four Democrats will vote for marriage equality and that Scalia, Thomas, and Alito will vote to uphold prop 8 and DOMA (but the federalism questions re: DOMA raise some problems for the conservatives). It will come down to Kennedy and perhaps Roberts. I’m more optimistic in the California case than in the DOMA case but both will be close.

One interesting side point is that SCOTUS agreed to hear questions about standing in both cases. They have left the door open to deciding that proponents of Prop 8 and the House lack standing and that, therefore, the Court doesn’t have to decide the case. I don’t think this will happen but it’s an interesting option.

Jean SchroedelProfessor, Department of Politics and Policy, Dean of the School of Politics and Economics, Claremont Graduate University

I had thought the Supreme Court was going to duck the issue, so I am a bit surprised. On the whole it is probably a positive move for the gay rights side. The Court is split with 4 conservatives, 4 liberals and Justice Kennedy as a swing vote. Although Kennedy leans toward the right, in the past he has indicated some support for gay rights issues.

I think there are two reasons why the Supreme Court decided to take the issue up. First it has constitutional implications (e.g., equal rights) and those are the types of cases that the Court is likely to accept. They tend to wait until the issue is “ripe,” which means it has risen to a high degree of public interest and lower courts are split. Second, there are 9 states that allow gay marriage, but the Defense of Marriage Act of 1996 defines marriage for federal purposes as involving one man and one woman. What this means is that a person in one of the 9 states may be married with respect to state laws, but not federal laws. This can be very confusing. Also there are more than 1,000 federal government benefits that one can possibly get if married under federal law, so these people are ineligible for these benefits.

Clyde WilcoxProfessor, Department of Government, Georgetown University

Well, it depends on how they rule, of course. As I look at the 9 judges I expect them to rule narrowly for the GLBT side in both cases. But either case could go either way.


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