How the Supreme Court could avoid ruling on gay marriage

The Court has a way out of ruling on both Proposition 8 and DOMA

By Jillian Rayfield

Published March 25, 2013 3:19PM (EDT)

The highly anticipated Supreme Court rulings on Proposition 8 and DOMA could wind up being a big letdown for gay marriage advocates, if the Court decides that it lacks jurisdiction to decide whether each law is constitutional.

Each case, set for arguments before the court Tuesday and Wednesday of this week, presents for the justices the issue of standing -- the determination of whether a party has a proper stake to bring the case before the Court.

In the case of Proposition 8, California's ballot measure that banned gay marriage, the justices will consider whether supporters of the law have standing to bring the case by virtue of their sponsorship of the ballot measure. Both the District Court and the 9th Circuit Court of Appeals ruled that they do.

But if the Supreme Court decides that Proposition 8 backers lack standing, it means that the highest court does not have the jurisdiction to decide the case. It would also, in turn, vacate the 9th Circuit's decision, since the backers of the ban were the only party that brought an appeal.

Most likely, then, the decision would kick back to the District Court level, and Judge Vaughn Walker's ruling, that Proposition 8 violates the Equal Protection clause of the 14th Amendment, would stand.

In practical terms, that would mean that the two gay couples in the case would be allowed to marry. The question of whether other gay couples in California will be afforded the same right is a little bit trickier, since District Court decisions (unlike decisions of a Court of Appeals) typically apply only to the parties before it. California officials who oppose Proposition 8 could nonetheless decline to enforce the law outright.

In the case of Edith Windsor's challenge to the Defense of Marriage Act, the law that defines marriage as between a man and a woman for the purposes of receiving federal benefits, there are two standing questions at issue. The first is whether the Obama administration's decision to stop defending DOMA and take the position that it is unconstitutional means that the Supreme Court has no jurisdiction in this case. The second is whether the Bipartisan Legal Advisory Group, the legal arm of the House of Representatives that took up the defense of DOMA in lieu of the Obama administration, has standing. In Windsor's case, the District Court found that BLAG had standing but ultimately held that DOMA was unconstitutional; that decision was affirmed by the 2nd Circuit Court of Appeals.

So if the Supreme Court concludes that it lacks jurisdiction over the DOMA case, one possible outcome would be that the District Court's ruling will stand. This means that Edith Windsor herself will begin receiving federal benefits, but DOMA will remain on the books elsewhere. As SCOTUSblog puts it, each individual who wants to receive federal benefits based on their marital status "would then have to sue the United States for relief, and in each case the U.S. would agree that DOMA should not apply."

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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Doma Gay Marriage Proposition 8 Same-sex Marriage Supreme Court