Though many gay marriage advocates cheered the Supreme Court’s decision to take up Proposition 8 and DOMA on Friday, a few were wary of the Court’s decision to hear both cases at once.
“There is no question that it is a risk,” said Gavin Newsom, California’s lieutenant governor, the Daily Intel reports. “If they nationalize it and reject it, that’s going to take decades to come back to the court.”
Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality, told HuffPo’s Lila Shapiro that because the lower court’s ruling on Proposition 8 was very narrow, she would have preferred if the Court just decided to take up DOMA. ”I’m not thrilled. I would have preferred they took the Windsor case alone.”
The National Organization for Marriage, on the other hand, thinks things are looking up. “I’m ecstatic,” Brian Brown, NOM’s president, told the New York Times. “Taking both cases at the same time exposes the hypocrisy on the other side.”
“We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said NOM Chairman John Eastman in a statement on 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.”
The Court’s orders give the justices a lot of wiggle room on the question of whether gay marriage should be legal. For one thing, the justices gave themselves a way out of ruling altogether through the question of standing.
In the orders released on Friday, the Court said it would first look at whether the supporters of Proposition 8, which banned same-sex marriages in California, had standing to bring the case. For DOMA, the Court will decide “whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” If not, the Court will not make a ruling on the merits of each case.
There is also the possibility that the Court could issue a split decision. From the New York Times:
The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.
And there are those outcomes that would not address the constitutionality of same-sex marriages as a whole. From the Times:
The justices could also affirm a California-only rationale relied on by the appeals court. That court said Proposition 8 must fall because voters had withdrawn a constitutional right from gay men and lesbians. Whether the establishment of such a right was required by the Constitution in the first place, it said, was a question for another day.
Finally, the justices could pursue what Kenji Yoshino, a law professor at New York University, calls the “eight-state solution,” one that would affect California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. Those states give gay and lesbian couples all the benefits and burdens of marriage but withhold the name “marriage.” That distinction, the court could rule, violates equal protection principles.