The Supreme Court on Friday set in motion its constitutional machinery on the issue of same-sex marriage, probably producing a result in June, the most popular month for weddings. Friday thus marked a bold beginning, especially in the face of the reality that the court could have chosen to stay away from the issue altogether, but deliberately chose not to do so.
But the path from this beginning to the June outcome will be, for the justices, more like finding their way through a garden maze: the end at times will seem quite elusive. And, in this instance, the end might not be a clearly defined one: either that gay weddings will be made legal nationwide, or that states will remain free to ban them if that is their choice.
Between now and one of those clear results, there is a daunting series of turns. Too much can be made of that fact, though, and that would take away from the historic importance of what the court has begun. Aside from a fleeting look 40 years ago at a legally forlorn plea to allow a Minnesota gay couple to marry, the court until now had never seriously pondered the question.
In the lawyers' coming written arguments, and in the arguments that will unfold in the court’s chamber in March, there will be serious and even profound give-and-take about whether same-sex marriage is or is not constitutionally protected. That is what will hold the attention of most of the public: that’s the issue that the people have been debating for at least a generation, and on which the country’s attitude may be changing, as recent election gains for same-sex marriage have shown after a string of defeats at the polls in all parts of the country.
The court thus will enter the national conversation, and do so at the most fundamental level: What does America’s founding and enduring charter say, or at least what can it be interpreted to mean, on this issue? Those core questions had been laid before the court by the lawyers, and the court said Friday it would consider them.
Still, it is well to remember that what are before the court are court cases, not political conversations or the neighbor’s comments, and those cases have to play out under rules and procedures that are, in fact, constitutionally required.
And when the justices announced their first reaction to the new cases, half of what their orders said told the lawyers to come prepared to argue that the ultimate question is beyond the justices’ reach, that it may not have the authority to rule now. To some, that may seem quite baffling: a court this powerful, with almost complete discretion about what it will decide, might not be able to decide at all?
The answer can be found in these words of the Constitution’s Article III: “The Judicial Power shall extend to all Cases…(and) Controversies…” From President George Washington’s time, when the Supreme Court advised him that the court has no power to give advisory opinions, those words have been understood to mean that the justices can only rule on real, live legal controversies, with two sides that have what the Supreme Court has called “a direct stake” in the dispute.
The theory behind it is that the meaning of law will develop better in a system of courtly confrontation, what lawyers call an “adversarial” process. With something real at stake, rather than a merely abstract question, genuine law will get made by the courts.
Here is why that comes into play in the same-sex marriage cases that the court will be reviewing: The justices are not sure that the parties bringing the cases to them have “a direct stake” in the outcome. They surely have an interest, but is that enough?
In the California case, the constitutionality of the state’s “Proposition 8” withdrawal of the right of gays and lesbians to marry was an issue taken to the court by the sponsors of that ballot measure.
In agreeing to take on that plea, the court’s order told lawyers to add to what they say on the constitutional issue their competing views on whether referenda sponsors can show that they will suffer legal harm if their measure is struck down, and that a victory in court will actually remedy that harm. The court, in a 1997 decision, raised “grave doubt” that sponsors can be in court to defend their measure.
Thus, if the sponsors are not the right party to raise the constitutional issue, there is no one in court to defend “Proposition 8,” so the court can’t decide it.
In the separate federal lawsuit, the constitutionality of the Defense of Marriage Act’s limitation of marital benefits to unions of a man and a woman was a question taken to the court by the Obama administration (the executive branch) and by the Republican leaders of the House of Representatives. The executive branch no longer defends the act, and so the GOP leaders of the House have taken up that cause.
In agreeing to take on that case, the justices said they wanted to hear arguments on whether they can decide the case at the request of the executive branch, because it won what it sought in a lower court decision striking down the marriage benefits restriction. And they called for arguments on whether the House Republican leaders have a direct stake that justified their coming to court to defend the act.
If neither the government nor the lawmakers are properly before the court, it would seem, that particular DOMA case could be out of judicial reach.
The fact that the justices asked those up-front questions does not mean, of course, that they will rule in the end that they cannot rule. But it does set the stage for an inquiry that is likely to say something of real importance about judicial power under Article III.
At some point, it remains a strong likelihood that there will be same-sex marriage cases that, in fact, the court can decide. That just may not be in the term that runs through June. But, in the meantime, there will have been a kind of judicial seminar on the constitutional issues surrounding same-sex marriage, contributing to the national dialogue.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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