This year’s annual LGBT Pride celebrations will have special meaning as they’re taking place in the same month that landmark rulings are expected from the U.S. Supreme Court in cases on marriage equality.
Two cases are currently pending before the Supreme Court: Hollingsworth v. Perry, which is challenging the constitutionality of California’s Proposition 8, and Windsor v. United States, which is challenging the Defense of Marriage Act.
At this end of this month, the lawsuits could produce a number of outcomes resulting in major changes in marriage laws.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, noted the anticipation of the rulings from the Supreme Court — which would come on the heels of other victories seen in recent months — as LGBT people celebrate Pride.
“We have seen tremendous progress in the past several years and as we celebrate our achievements this Pride season, we are all anxiously awaiting news from the Supreme Court,” Cole-Schwartz said. “The court has the opportunity to write the next chapter of our progress as a community and we are hopeful that there will be more celebrating to come this June.”
The case challenging Prop 8 could produce the greatest range of outcomes: No. 1 on marriage-equality supporters wish list is a ruling that would say on bans on same-sex marriage are unconstitutional and all 50 states must offer marriage rights for gay couples. Such a broad ruling is deemed unlikely by legal experts and other observers.
Other positive rulings would be more limited in scope. The court could uphold the U.S. Ninth Circuit Court of Appeals decision, which was limited to California and said a state can’t offer marriage rights to gay couples and then take them away. The nine justices could also could rule that civil unions and domestic partnership are separate and unequal, requiring the eight states that provide them to offer marriage equality.
Another option one may be for the justices to avoid the issue of constitutionality altogether. One option would be for the Supreme Court to determine that it was incorrect to grant review of the case, leaving the Ninth Circuit decision in place. Another would be to say that proponents of Prop 8 don’t have standing to defend the law in court. This latter option may be the most likely considering the justices’ interest in the standing issue during oral arguments in March.
The options are limited in the DOMA case, although there are several possibilities. The court could strike down DOMA by saying it’s unconstitutional — either on federalism grounds or by saying it violates equal protection for gay couples — which would likely mean the federal government would begin recognizing same-sex marriages throughout the country.
The court has also expressed an interest in the standing issue and hired a court-appointed attorney ,Vicki Jackson, to argue that neither the Obama administration, which has begun litigating against DOMA, nor House Republicans, who have defended it, can take part in the lawsuit. It’s unclear what the outcome would be if court rendered a decision in the DOMA case on standing issues.
Of course, the court could also issue decisions saying Prop 8 or DOMA are constitutional, leaving them in place and forcing LGBT advocates to go to the ballot for the California measure and Congress for DOMA to repeal them.
In either or both cases, the court could rule that laws related to sexual orientation should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional. That’s the position held by the Obama administration.
Such a ruling would have an impact on other LGBT-related cases throughout the country, such as those challenging marriage bans or laws restrictive of other rights.