Marriage in the courthouse

The U.S. Supreme Court hurled a lightning bolt Friday afternoon by agreeing to hear two cases that could reshape the legal definition of marriage, both at the state and federal level. Both cases could also establish whether the law must give homosexuality a constitutional status like race or gender.

The court had 10 petitions to consider on same-sex “marriage,” but picked two of potential magnitude to hear this term. Both cases deal directly with the constitutional merits of traditional marriage laws. Still, the court could dodge the central constitutional questions through technicalities, like whether any of the petitioners lack standing.

The court agreed to hear Hollingsworth v. Perry, a case regarding California’s Proposition 8, a voter-passed law that defines marriage as between a man and a woman. In February, the 9th U.S. Circuit Court of Appeals struck down the law as discriminatory. The Supreme Court said it would consider the question of whether Proposition 8 violates the Equal Protection Clause of the 14th Amendment by discriminating against homosexual couples. That issue strikes at the heart of every state-passed traditional marriage law.

The court also agreed to hear Windsor v. United States, a challenge to Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and woman and restricts federal benefits to opposite-sex spouses. In May the 1st U.S. Circuit Court of Appeals struck down Section 3 as unconstitutional, on the grounds that restricting federal benefits to heterosexual couples did not serve the law’s purpose of supporting heterosexual marriage.

Bipartisan majorities in Congress passed DOMA and President Bill Clinton signed it into law in 1996. Initially President Barack Obama’s Justice Department defended DOMA in court as “existing law,” but in early 2011, President Obama and Attorney General Eric Holder announced they deemed Section 3 unconstitutional. Holder said his attorneys would no longer defend the law.

Since then, the Justice Department has not only refused to defend DOMA but has also participated in litigation against it. The Supreme Court, in its concise order granting the DOMA case on Friday, said the parties in the case would need to consider the question of whether the court had jurisdiction in the case since the government believed its own law was unconstitutional.

None of the justices recused themselves from either case, so any decision will need a five-justice majority. All eyes turn again to Justice Anthony Kennedy as the swing vote. Justice Kennedy’s own libertarian bent has worried supporters of Proposition 8 in particular, but they may find comfort in his fealty to states rights. He also wrote two of the court’s major opinions on gay rights—Romer v. Evans and Lawrence v. Texas—both of which dealt with discrimination against homosexuals in a broad sense. But neither of those cases got to the heart of whether same-sex “marriage” is constitutional.

The lead-up to the high court taking these two cases parallels the lead-up to the 1973 Roe v. Wade case that legalized abortion. At the state level in the decades before Roe, voters blocked referendum after referendum to legalize abortion by sizable majorities. But then the Supreme Court stepped in and overturned many state-level restrictions on abortion with one decision. Similarly, in the last decade, 38 states have passed traditional marriage laws, either by referendum or in legislatures. The Supreme Court could upend those laws with these cases.

One difference is that public opinion against same-sex “marriage” is weaker than it was against abortion at the time of Roe. In the last 15 years, opposition to gay marriage has dropped by 20 points according to the Pew Research Center, down to 43 percent this year. In 1972, a Gallup poll showed that 66 percent of Americans opposed elective abortions. The court, of course, enjoys ignoring public opinion in all of its cases.

The court will likely hear both cases in late March, according to court expert Lyle Denniston of SCOTUSblog.