It's a Nice Day for a Gay Wedding

Last week's oral arguments in two landmark cases involving same-sex marriage will likely not be followed by opinions until late June. In the interim, there will be a great deal of speculation about what various rulings might mean. With respect to the legal challenge to Section 3 of the Defense of Marriage Act, speculation about the outcome will be less common because most legal observers (including me) expect a comfortable majority of the Court to strike it down. With respect to the challenge to California's Proposition 8, however, the outcome is less certain. Each outcome will lead to markedly different developments for gay and lesbian rights. For this reason it's worth teasing out the implications of the possible rulings in the challenge to Prop 8.

The are three potential outcomes, which I will argue are in ascending order of desirability:

Prop 8 Is Upheld

This would be the worst-case scenario, a 21st century Bowers v. Hardwick, the 1986 case upholding a Georgia sodomy law. Kennedy gets cold feet, decides to "leave the issue of same-sex marriage to the states," and gays and lesbians in the nation's largest state—as well as every other state that doesn't have same-sex marriage already—will endure violations of their fundamental rights for the time being.

The campaign for same-sex marriage would "survive" an all-out loss in the Supreme Court, and Prop 8 would be unlikely to survive the next election cycle in California. But a bad Supreme Court precedent could make it more difficult to challenge bans on same-sex marriage in states where the prospects for doing so by legislative means are less promising. Bowers had all kinds of bad consequences for judicial decisions in areas beyond the immediate scope of the case, most notably in family law. A Supreme Court decision reiterating that discrimination based on sexual orientation was not invidious and subject to heightened scrutiny might have similar bad consequence, above and beyond upholding bans on same-sex marriage.

Fortunately, the worst-case scenario is by far the least probable. Anthony Kennedy has never voted to uphold discrimination against gays and lesbians in a major case; it seems unlikely that he'd start in the highest profile one. Nor does it seem likely, with public opinion turning rapidly in favor of same-sex marriage, that Chief Justice Roberts would want Bowers II to be a central legacy of his Court—particularly when middle-of-the-road options are available.

Prop 8 Is Struck Down—Narrowly

The Supreme Court could strike down Prop 8 and avoid another Bowers without going so far as to create a national right to same-sex marriage. The oral arguments would seem to suggest that this is the most likely outcome. While Kennedy's history on gay and lesbian rights is relatively positive, his record also suggests caution and a reluctance to proceed too far.

Should the Court choose this path, it could do so in a couple of ways. In the less likely scenario, suggested by Justice Kennedy at oral argument, the Court could dismiss the appeal as "improvidently granted," leaving the 9th Circuit decision striking it down in place without making any further law. A more likely minimalist option—particularly if the Supreme Court interprets the "rule of four" as implying that six votes are necessary for a dismissal on those grounds—would be to punt the case based on standing. The Court could buy the argument advanced by former Clinton administration Assistant Attorney General Walter Dellinger that because California has declined to defend Prop 8, nobody has "standing" to bring an appeal. Finally, the Court could simply be unable to produce five votes for any majority rationale at all, which would have the same effect of leaving the lower court ruling striking down Prop 8 in place without making new law.

Another middle-of-the road possibility with somewhat broader implications would be the so-called "eight-state solution," which would focus on the fact that California already offers civil unions to same-sex couples that have all of the legal privileges and benefits of marriage. For California and the other states that already make the legal equivalent of marriage available to same-sex couples, this argument would run, excluding same-sex couples from marriage has no rational basis. This decision would bring same-sex marriage to every state that has robust civil unions (although further litigation may be required to determine when a civil union was the equivalent of marriage), without affecting states where same-sex marriage is least popular or making discrimination based on same-sex marriage subject to strict scrutiny.

To many supporters of same-sex marriage, this outcome would be acceptable—or perhaps even the most desirable. "[S]ame-sex marriage is inevitable," argues David Cole, so the Supreme Court would be wise not to proceed too quickly and allow the issue to play out in states for as long as possible. However, this is almost certainly too optimistic. As Nicholas Stephanopoulos and Josh Barro note, state legislatures can lag substantially behind public opinion, and even initiatives do not represent perfect samples of state electorates. (The younger demographics who most favor same-sex marriage are the least likely to turn out to vote, especially in off-year elections.) Special interests affect legislative outcomes more than the preferences of ordinary voters. Just as electorates that overwhelmingly favor stronger background checks for gun purchasers can produce legislative majorities that have no interest in enacting them, nominally pro-same-sex marriage populations in Republican-dominated states are likely to elect officials who don't favor repeals of same-sex marriage and face no real political repercussions for their position. While the "eight-state solution" would bring same-sex marriage to more states in the short run, it could make the legal positions of gays and lesbians worse in the medium term by creating perverse incentives in states that don't have robust civil unions.

A National Right to Same-Sex Marriage

The final possibility, more likely than the first scenario but much less likely that the second, would be for the Supreme Court to rule that classifications based on sexual orientation should be subject to heightened scrutiny, creating as a result the national right to same-sex marriage.

As a flipside to the "same-sex marriage is inevitable to why rush it?" argument detailed above, some have argued that this outcome would not be optimal for same-sex marriage rights, given the backlash that would ensue in states where same-sex marriage is unpopular. But like most contrarians pushing the idea that winning would secretly be losing and vice versa, the argument fails to withstand scrutiny.

There's no evidence that judicial opinions create more backlash than legislative victories. A broad decision would create some political opposition in deep-red states, but it's not clear what effects this would have. Unlike with Brown v. Board, a decision granting same-sex marriage rights won't require ongoing collaboration by large number of state actors to implement, and any attempt to overturn a broad decision by national constitutional amendment would be a non-starter. The states where a decision granting same-sex marriage rights would be most unpopular for the most part are already solidly Republican.

In other words, supporters of same-sex marriage should be hoping for the creation of a national right to same-sex marriage, not a decision that kicks the can down the road. And they should be particularly suspicious of arguments made by people who live in jurisdictions that already have same-sex marriage that gays and lesbians in Alabama and Idaho should be happy to wait until after many of them are dead to have their rights vindicated. The time for marriage equality is now.

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