The Supreme Court has the briefs in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the Defense of Marriage Act case). The rallies are over; the oral arguments have been heard. The slew of amicus briefs filed have been read, including one signed by 172 members of the 435-member House of Representatives — nearly 40 percent — maintaining that DOMA unconstitutionally deprives same-sex couples of the right to be treated equally.
Justices heard about the first Republican senator, Rob Portman (R-Ohio) who came out for same-sex marriage based on his son being gay. Hillary Clinton has spoken out for same-sex marriage joining former President Bill Clinton who now recognizes that DOMA, a bill he signed, is unconstitutional. President Jimmy Carter came out for marriage equality along with hundreds of America’s leading businesses from Walt Disney to Goldman Sachs. President Obama’s Justice Department weighed in strongly on both cases saying any prohibition on same-sex marriage, or the federal government’s ability to recognize legal same-sex marriages, is unconstitutional.
Now we wait for six men and three women to determine whether lesbian and gay individuals can live our lives to our full potential; publicly declare our love; and share in the benefits and obligations of civil marriage. History would suggest that like last year where the fate of the Affordable Care Act (Obamacare) was decided, we won’t hear the justices’ decision until the last day of the court term.
While speculation runs rampant about who the swing justice or justices will be, I suggest we remember Obamacare and prepare to be surprised. Many agree the political fight over same-sex marriage is all but over. By increasing numbers, Americans support same-sex marriage. They see more friends and relatives come out and have concluded that their loved ones deserve the same rights they have. It was a noteworthy sign of the times that Chief Justice John Roberts’ lesbian cousin Jean Podrasky sat and listened to her cousin ask questions from the bench related to how she can live her life.
In the Prop 8 case there was interesting discussion around the options. In the first 30 seconds, Roberts asked the proponents of Prop 8 to address whether they have “standing” to bring the case. Justice Kennedy commented that the court may have acted too quickly in taking the case. But in the discussion over whether anyone is harmed by same-sex marriage, Kennedy said if same-sex marriage were not allowed it would be the 40,000 children living with same-sex parents who would be harmed. Justice Kagan, to some laughter, addressed the issue of the claim that marriage is for procreation only by suggesting that in that case couples where both husband and wife are over 55 couldn’t be married. That led to a rather humorous back and forth on fertility. It appears that the court may look at the amicus brief submitted by former acting Solicitor General Walter Dellinger and rule that the parties bringing the case had no standing. That would lead to same-sex marriage being legal in California but have no impact on other states. They could also declare that prohibiting same-sex marriage is unconstitutional and throw out laws in the 32 states that now prohibit it. Judging by the questions asked and the comments made that result now looks unlikely.
Though not a lawyer, my prediction is that DOMA will be overturned by a vote of 6 to 3 with both Roberts and Kennedy siding with the majority. The court will punt with regard to Proposition 8 and go with states’ rights ruling 5 to 4 that in essence same-sex marriage is legal in California but not apply the ruling to any other state.
I pray for more. My hope is that the Supreme Court will side with the arc of history. But with or without them we will move forward and win in the long run. If the court doesn’t stand for full equality now the battles will continue state by state. Then despite how quickly momentum is moving toward equality it will still take time for same-sex marriage to be a universal right.