The Supreme Court Takes Up Gay Marriage: It Can Make History—or Punt

“Standing” is a legal concept that may come into play as the high court hears arguments in March. And it may limit the effect the justices have on one of the fastest moving civil rights campaigns in U.S. history

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Same-sex marriage proponent Kat McGuckin of Oaklyn, N.J., holds a gay pride flag while standing in front of the Supreme Court in Washington, Nov. 30, 2012.

The U.S. Supreme Court’s announcement that it will hear two cases involving gay marriage in March is a milestone in one of the fastest-moving civil rights campaigns in American history. With the nine justices almost certainly locked into a 5-to-4 split, and with no certainly where the decisive vote will fall, the moment holds equal parts peril and promise for advocates on both sides of the fight over whether same-sex couples can legally be married.

But while the stakes are sky high, Friday’s orders from the court do not guarantee that the decisions, expected as soon as June, will offer anything like the final word on gay marriage in America.

(PHOTOS: Early Days in the Fight for Gay Rights)

In fact, in order to address the question of marriage at all, both cases will first have to survive scrutiny by the justices on a far more mundane question: Do the appealing parties have standing to bring the cases at all?

In agreeing to set the cases for oral arguments in March, the justices on Friday ordered attorneys in both cases to brief the question of standing, a clear signal that the court is reserving the option of punting on the cases instead of addressing the broader constitutional questions related to gay marriage.

What is standing? It’s a legal concept that comes from the constitution’s requirement that only cases that involve real injuries to specific parties be heard in the federal courts. That means, for instance, that you can’t sue a drunk driver for injuries because you think he might crash into your house on the way home from the bar. And you can’t sue him because he ran over your neighbor, either. The neighbor–or her estate–would have to do that.

If both cases the Court has decided to hear are thrown out on jurisdictional grounds—that is because of a lack of standing–the lower court rulings will be upheld. That will mean victories for gay rights advocates, but likely in far narrower ways than advocates have hoped for.

In the California case, lower courts have twice ruled that a 2008 ballot initiative (the so-called Prop 8) that changed the constitution to ban gay marriage violated the federal constitution. The district judge ruled in sweeping terms, finding that the right to gay marriage was guaranteed by the U.S. Constitution.

(MORE: Gay Washington State Couples Get Marriage Licenses)

The state of California declined to appeal that ruling, which would have ordinarily meant that the decision would stand. But instead, the group that had led the petition drive to put the question on the ballot in the first place asked for permission to appeal in the state’s place, a request that was eventually granted.

When the liberal-leaning Ninth Circuit finally ruled on the case, it did so on far less grand terms than since-retired Chief District Judge Vaughn Walker. Instead of finding a fundamental right to marry in the constitution, the Ninth Circuit said merely that California voters had gone too far when they amended their state constitution to take away a right that had already been granted — a set of factors that would only be meaningful for California.

That narrower decision is on appeal before Supreme Court now, not the broader ruling by Walker. But if the Supreme Court chooses to rule that the petitioners never had standing to appeal in the first place, it will be Walker’s decision that becomes law.

That would be a sublime victory for gay rights in California, where some 18,000 couples were married before Prop 8 took effect. But by deciding the case on the question of standing the Supreme Court would have avoided having to decide the question of gay marriage for the rest of the country. Walker’s decision would only be meaningful in the Golden State.

The second case being teed up for a Supreme Court decision comes out of New York and involves standing in a different way. Several lower court judges have ruled that the 1996 Defense of Marriage Act (DOMA) is unconstitutional, essentially because it forbids the U.S. Government from recognizing valid state marriages between same-sex spouses, a law that means for tax or employment purposes, for instance, gay couples legally married in New York are deemed to be single by the federal government.

The Supreme Court has agreed to hear an appeal of those lower court decisions. But because President Obama has ordered his justice department not to defend DOMA in courts, it has fallen to the U.S. House of Representatives to retain lawyers to defend the statute. Before they decide whether the lower courts have been right, the justices said Friday that they want to hear arguments about whether the House leadership has standing to defend a law the President has determined to be unconstitutional and won’t defend.

(MORE: How Gay Marriage Broke Through the Voting Booth Barrier)

In the New York case, called Windsor v. United States, a ruling that the appeal lacks standing would leave intact the Second Circuit’s ruling striking down the Clinton-era DOMA. But because that ruling is only binding in the Second Circuit, the Supreme Court could avoid weighing in altogether on the more central question — whether DOMA’s restrictions on gay couples pass constitutional muster. The law would remain in effect for the rest of the country.

Noted constitutional legal scholar Erwin Chemerinsky told TIME on Friday that the standing issue is a critical one in these cases, and said the court wasn’t simply looking for a way out of deciding the cases on the merits. “I think these are really hard standing questions,” says the dean of the University of California at Irvine law school and a supporter of gay marriage. “If the government chooses not to defend a law, who, if anyone, may do so?  A court can decide an issue only if it has jurisdiction.” He told TIME: “I think the Court was right to take up the jurisdictional questions. I think there is a real possibility the cases could be dismissed on jurisdictional grounds.”

Still, legal observers and advocates alike were eager to point out that just because the Supreme Court has given itself room to punt on the broader legal questions in these cases doesn’t mean they won’t find the votes for a more expansive ruling.

Opponents of gay marriage hailed Friday’s announcements as indications that the Supreme Court is finally weighing in to stop the steady assault on traditional definitions of marriage underway in state and federal courts. “We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said John Eastman, chairman of the National Organization for Marriage, and former dean at Chapman University School of Law, in a statement Friday. “We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.” Eastman added, “Had the Supreme Court agreed with the lower courts’ decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case.”

Despite his speculation about the possibility of decisions based on standing, Chemerinsky says the fact that the justices agreed to take both cases at the same time is likely to mean they are preparing for a broader ruling–assuming they can get past any jurisdictional concerns. “I think the Court taking both means it is likely that the Court will rule more broadly on whether there is a right to marriage equality for gays and lesbians,” he told TIME. “Had the Court only taken Windsor, about the constitutionality of the Defense of Marriage Act, it could have limited its decision to what the federal government can do. Now, I think the Court will take the more general question: Do gays and lesbians have the right to marry?

If the justices do address the larger questions of whether gays have the right to marry, the decision is expected to come down to Justice Anthony M. Kennedy, a conservative judge who has, nevertheless, played a key role in deciding previous cases in favor of gay rights.

And in that way, Chemerinsky suggested, the same steady drumbeat toward gay rights that Eastman so hopes the Supreme Court will finally halt could be the deciding factor in creating a majority to uphold gay marriage. “I think Justice Kennedy wants to be on the right side of history,” he told TIME. “There’s no doubt where history is going on this. The November elections saw three states approve gay marriage initiatives and one reject an initiative to ban it. … Kennedy wants to write the next Brown v. Board of Education.”

VIDEO: Going to the (Pop-Up) Chapel and We’re Gonna Get (Same-Sex) Married
Michael A. Lindenberger is a contributor to TIME.com and currently a John S. Knight journalism fellow at Stanford University.

45 comments
jesteban78
jesteban78

@Lindenberger It's time for a @dallasnews editorial endorsing same-sex marriage (well) ahead of the SCOTUS hearing.

nomerosa2
nomerosa2

@TIME per favore vogliamo fatti e non paroloni,,,

droo46
droo46

I think the federal government should leave it to the states to decide. 

ffl24
ffl24

@TIME never thought this would happen in my life time God have mercy on us.

bilekhalif
bilekhalif

@TIME Its about time the US took a firm stand on the issue. the world is watching.

CarterPeterson
CarterPeterson

Should SCOTUS make a decision that establishes a FEDERAL ruling on the matter (rather than permitting the STATES to rule independently of federal authority), there could be unforeseen consequences.

worldinneedcorp
worldinneedcorp

@TIME seems fartoomuch focuson repro-organs and "orientations" preferable toenable and enact goodways for America's Peoplethat payforeps

DADWAI
DADWAI

@TIME how I get U daily on my window fone daily? drsirajahmadmemon@yahoo.com

terrasculp
terrasculp

@TIME Why would anyone care who a person legally marries? Love is blind, can't believe this is truly an issue in 2012. Grow up America!

ajstark
ajstark

@TIME why is it even for gvt to say? Socialism..

flolv007
flolv007

A sick country and society,No values, no morals , no GOD

When a nation becomespossessed with a spirit of commercial greed, beyond those just andfair limits set by a due regard to a moderate and reasonable degreeof general and individual prosperity, it is a nation possessed bythe devil of commercial avarice, a passion as ignoble anddemoralizing as avarice in the individual; and as this sordidpassion is baser and more unscrupulous than ambition, so it is morehateful, and at last makes the infected nation to be regarded as theenemy of the human race.

Marky_D_Sodd
Marky_D_Sodd

Homosexuality has been observed and documented in more than 1500 species.  Anything that occurs in nature is .... well... natural.

50% of straight first marriages end in divorce.

67% of straight second marriages end in divorce.

74% of straight third marriages end in divorce.

Obviously straight marriage is not natural.  Straight divorce is the norm.

End of story.

p_incorrect
p_incorrect

It would never stop to amaze me liberals' appetite for self deception. I would agree that Kennedy is going to be the decider here. And yet, despite his crucial vote in repealing laws that criminalize homosexuality or the discriminate homosexuals in the sense blacks were discriminated (Colorado case), it is a stretch to say that he will find that the 14th amendment means that gays have a constitutional right to gay marriage. Gays have a constitutional right to "normal marriage", as every other person. But gay marriage is a very different beast. Giving to it the status of constitutional right without it being there will put the court on the heels of Roe v Wade not Brown v Board of Education. And the last thing any justice wants to be remembered for is for being the author of the next Roe v Wade. Brown v Board of Education was an unanimous decision. The author of this piece of shit agrees that this will be a 5-4 decision. As to the "right side of history", again, this is laughable. Probably the "right side of history" as perceived by liberals in the early 70s was to guarantee abortion on demand. 40 years later, the issue, precisely because of an activist Supreme Court, remains as contentious as ever because the American people were sold that Roe v Wade would make abortion rare and safe but the numbers say that 90% of abortions happen for reasons of convenience, only the rest happen because of reasons most Americans feel comfortable with (like rape or danger for the life of the mother). The end result is that today a majority of Americans consider themselves prolife, after the initial cheer-leading that followed Roe v Wade. Elevating gay marriage to the status of constitutional right, without it having been introduced via a constitutional amendment, will have many unintended consequences, as it happened in Massachusetts where the Catholic Church was forced to shutdown its century old adoption service. If justice Kennedy wants to make the issue of gay marriage the next big ticket item on the cultural wars, all he has to do is to invalidate the will of the people of California who, in approving prop 8, were just reacting to a 3-4 decision by the California Supreme Court that invalidated its previous decision (prop 22). The proponents of prop 8 asked the California Supreme Court to put its decision on hold until after November 2008 because there is legal precedent that in states of California where the people has the power to amend its constitution, the people is the final decider over judges. The Court refused creating the mess of gay marriages that occurred before prop 8 was approved. One has to give the liberal judges at the federal level that they had the humility to let prop 8 be in place until the final issue  was finally resolved. Had the California Supreme Court done the same, we might have a much easier route. 

These same liberal deceivers kept saying that the US supreme court would not take on Prop 8 out of fear. Really? Fear of what? I think that the real hubris is to pretend that 3 liberal San Francisco Judges (one of them gay) can invalidate the will of the people of California with nonsensical judicial reasoning and to expect the US Supreme Court to stay out of it.

You liberal nutcases have to understand that this thing of gay marriage is more akin to the death penalty. Few rights are more sacred than the right to life. Yet the court has consistently found that the 14th amendment doesn't imply an absolute right to life for adults. You can lose that right if the state convicts you of a heinous crime. The supremes weren't troubled that different states had reached different conclusions as to how to guarantee that right to life or how to take it away or how that right can be guaranteed and then taken away and viceversa. If Kennedy is true to his strict constitutionalism philosophy, he'll come to the reasonable conclusion that there were gays at the time the constitution was enacted as well as at the time the 14-th amendment was enacted and yet nobody in his right mind at the time thought that the enactment of both meant a constitutional right to gay marriage.

aboutbebout
aboutbebout

Of course TIME, in its' typically liberal tilt, declares: "History in the Making?"  I think gays have to earn their equality.  It's been all too rapid.  Why should they receive the silver platter treatment?  Woman and African Americans has to fight much longer and harder for their rights.   A few more generations would be just -- but do gays create generations?  Gays are birthed by straights.

StephenHislop
StephenHislop

I realize that people stand very strongly on both sides of this essentially visceral issue. I do not post to state my humble opinion--only to say that the days themselves are evil, no one can deny this, but salvation is to be found in the Rock of Ages and His Name is stated quite boldly in Acts 4:12, to which I don't have anything to add at this time--again my opinion is just that my opinion, and more than anyone else in this world I know how lowly it is

GrantMacDonald
GrantMacDonald

Being black, left-handed or being gay is just as natural. It is a sometimes rare occurrence to fall in Love and to hold that person in your heart and be loved in return ... it is something that should be celebrated! If it’s between two guys or two girls -- all the better. It takes even more courage to defend that LOVE!The evil writings in Leviticus 18:22 … against gays – depict: “P” … “priestly rules” & expanded by the pope; homophobes and religious frauds … to attack the gay community and never meant to apply to the public -- but to priests. Leviticus was written long after Moses -- 600BC.There is no scientific evidence to prove any of the cross related bogus elements of christianity and other religions. Our early human ancestors; on this earth … go back more than 6 million years … 5,996,000 years before the Greeks, Romans and the Jews. Christianity is basically a 2012 year old fictional cult.In the year 300 AD when Emperor Constantine, who to some was the first pope; went on to fabricate & market Christianity!Christianity is a fantasy; which turned out to be one of the most hateful & evil concoctions ever perpetrated on the world.It is written; so therefore it shall be? We are the chosen people? Such a wicked fantasy. To see the religious lunatics manipulate government and our lives is shameful.The pope and churches fully aware that Leviticus 18:22 applies to priests only … refuse to remove this stigma … maliciously persecuting gays. Kids are being bullied into suicide …!

ShamsAci
ShamsAci

The legislators as well as the judiciary of the country may please consider  moral effect of 'Gay Marriage'.

Piacevole
Piacevole

This is going to come down to there being no really good reason to deny people the right to marry whom they choose. 

"Because that's the way we've always done it" doesn't qualify.

VincentLovece
VincentLovece

It should be left up to the states to decide.

dayo1946
dayo1946

Lets hope the court makes the decision to define marriage for the U.S. as between men and women only.

antonmarq
antonmarq

This is a new brainer, and actually, the courts should not be involved in deciding this. When two people love each other, their orientation  should not and cannot be an issue. This issue biases the Supreme Court, forcing them to decide between individualism and religions freedoms, two separate issues.  

Our religious belief are part of our selected freedom, our right to choose which religion or not to personally have. Therefore, we cannot force one religious belief on an entire nation; especially, if that nation is comprise on many beliefs, whether religious and not. Give them their rights.

Nowhere1111
Nowhere1111

@ajstark 'socialism'?? Like interstate highways? Hoover Dam? the military? etc etc. Even insurance has socialist connotations. Try repeating 8th grade civics or maybe turn off Rush Limbutt pls.

p_incorrect
p_incorrect

And to add support to my thesis there, Anthony Kennedy voted in favor of both Boy Scouts of America v. Dale and the ban on partial birth abortion. So while he might not be ultra conservative on the social issues, he is far from ultra liberal either. At this point the best that can be said is that he is persuadable, and that's probably the best that the proponents of prop 8 can hope for because prop 8 didn't get a fair trial at the district level not at the appeals level.

StephenHislop
StephenHislop

I shared already on fyrefight, but allow me to repeat myself via Facebook.

An old saying states that if any person knowingly chooses to remain ignorant, he or she is ignorant.

Having violated no rule of English grammar or of common and logical patterns of communication in that language, I am standing by every word I wrote.

Piacevole
Piacevole

"The days themselves are evil?"

Perhaps you could explain the mechanism of just how a "day," which results from the rotation of a planet, can possible be "evil."  A long contemplation of the sky on a clear night, or perhaps a perusal of some of the Hubble photographs, might help to assess the actual position of numanity in the universe.

lenoxuss
lenoxuss

@ShamsAci If they do, they may as well look at the actual effect of actual gay marriage, which is only positive. If they consider the effect as it exists in certain people's paranoid minds then anything's possible.

Piacevole
Piacevole

Perhaps they might also consider the morality of continuing to maintain a prejudice whose only reason for being is its antiquity, and consider some of the other prejudices that humanity has shed, (at least, in some places) and been the better for having done it.

SwiftrightRight
SwiftrightRight

@Piacevole As much as I would love to see gay rights win the day I would argue that the conservatives in the SCOTUS have a perfectly good reason for denying a minority their rights as American citizens. That hate gay people. 

Really think about, it your talking about a group who free accepts free vacations . er "consultation trips" to the Caribbean from parties with cases on the docket. At least 1 judge refused to excuse him self from a case where is wife had a vested finical stake for one party and there is the fat that they have put party ideology before the Constitution in several cases (as in strip searches for men with no reasonable suspicion) 

lenoxuss
lenoxuss

@dayo1946 On what legal basis? The only argument that would remotely qualify is DOMA, but DOMA is pretty explicity not about overriding states' rights to permit same-sex marriage. At best the case can be made that there's no constitutional right to marry, thus the California court was wring and Prop 8 wins – but this does not translate into the existence of gay marriage itself being unconstitutional. By that argument, if a state outlawed smoking and the Supreme Court fiund that such a ban was constitutional, then all states would be federally required to outlaw smoking. Absurd.

antonmarq
antonmarq

@dayo1946 More nonsense. The argument is based on one specific religious group that has been losing power since the 15th century. Moreover, that group believes in a soul. So, the spiritual challenge is if it's possible for a soul to have landed in the wrong body, the opposite sex body? The answer, absolutely. Soul mates (key word, soul) have no sexual orientations outside the earth plane. However, within the plane, separation occurs, sometimes by design and sometimes by accident. let them merge.

aboutbebout
aboutbebout

@antonmarq   Their rights.   That would be tax benefits.  Because it's all about love.  Oh yes, that forever thing that ends and marriages dissolve.  Hey, more benefits there in divorce ... this may not be such a bad idea.  In California 50/50.  May be time to buy some tight white pants.  When wrongs become rights why not cash in?

GrantMacDonald
GrantMacDonald

@SwiftrightRight @GrantMacDonald Churches are committing hate crimes and more succinctly a violent criminal offence against a federally protected minority namely the gay community. It is actually a bigger moment in history … gays standing up for equality ... the realization that there is something far more evil at work -- hateful religion which should be discharged from society – period. It’s now time to shut down the churches with bibles about leviticus 18:22.Today’s evangelical extremists are like the nazis who cast others into ovens & are actually supremacists - who practice their bogus hocus pocus - and are trying to suppress and deprive others of their happiness and their legal rights in an open and proud society.Einstein stated in a letter recently auctioned that the bible was a collection of primitive legends. He said believing in God was childish and he as a Jew is no different than another person and are not chosen by God.Religion and the churches should now be exposed as a bigoted structure that gets away with hate mongering. It is a criminal offence to cause harm onto others physically or with written items; bibles have been getting away with this for ages.How would you like it … if hate speech was directed to your brother or sister as you sat in the pew; spewed by some better than thou religious lunatic with a hateful black book about Leviticus -- under his arm? Tony Perkins and his The Family Research Council's opposition to gay rights have landed the outfit onto a list of "hate groups,” like the KKK. Christian colleges should be classified as hate groups and shut down. UK Prime Minister Cameron is facing the issue of religious extremism; as we speak … regarding homophobia -- being taught to children at churches and schools.

dayo1946
dayo1946

@lenoxuss Does it have to be based on law? There is tradition, morals, and of course common sense. There are reasons for men and women to be married and it's mostly for the protection of children.

That people love each other, those are just words.

SwiftrightRight
SwiftrightRight

@antonmarq @dayo1946 More to the point its an argument based on specific sub sects of a specific religious group. 

Please in the future refrain from confusing our love for Jesus and fellow man with their misguided old testament based hate.

As for Dayo1946 If your so keen to ban gay marriage I suppose you would also sign on to ban divorce  I certainly hope you dont allow your wife to stay in your home while she menstruates since that is also banned in the OT

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