Yesterday the Supreme Court of the United States, known primarily for their taste in fine hats and awesome lady-collars, heard oral arguments on Hollingsworth v. Perry, which challenges the constitutionality of California's voter-approved ban on same-sex marriage. Today they heard oral arguments on United States v. Windsor, challenging parts of the Defense of Marriage Act. So what the hell happened? Can your dads get gay-married yet or what?
Not so fast, Adam Larson and Steven Butler, respectable gay couple from Modesto, California. Those couples who were married in California before Proposition 8 took effect might want to get comfortable. The Supreme Court likes to hear oral arguments and then marinate in the nervous words of Yale-trained attorneys for a long, long time. Basically, the Supreme Court is like a giant pot roast that needs more seasoning.
At issue in Hollingsworth is whether California's definition of marriage as "one man, one woman" violates the Equal Protection Clause of the Fourteenth Amendment. Sadly, it's looking more and more that we'll never slice into the delicious Equal Protection meat. Most of the justices questioned whether proponents of the Prop 8 ballot initiative (the "we don't like gay marriage" people) even have standing to defend the law. "Standing" is a legal term that means "the right to sue." If you don't have standing, the Court will kick you out on your bottom, and refuse to entertain the rest of your arguments.
In order to have "standing," the petitioners must show that they themselves suffered a specific injury. The anti-gay marriage nutter-butters think they've been injured because Prop 8 was found to be unconstitutional. The Court didn't really buy this argument — Ruth Bader the G put on her lacy brass knuckles and pointed out that they'd never let a group of randoms defend a law like this before. Usually the state itself defends its own laws in situations like these (the "injury" is the inability to enforce the law), but fortunately for everyone's sanity, California has refused to involve itself in this lawsuit.
The conservative justices were reliably wacky. Justice Alito, representing your confirmed bachelor uncle who thinks that Jesus created marriage sometime before he invented capitalism, said the Court needed to proceed cautiously, since gay marriage is "newer than cellphones or the internet." Oh, grandpa. You dodo. Meanwhile, Scalia gazed at his meatball sub and wondered, softly, when the state would recognize man/sandwich relations. And then he farted. The lawyer for the anti-gay marriage contingent said something gross about "thrusting" and "procreation" and everyone died.
Day 1 looks like a win for anyone who loves nuanced standing arguments — the Court might not get to any of the juicy constitutional questions at all. They might just decide that the anti-gay marriage people don't have standing, and go back to playing MASH in chambers. If Hollingsworth is thrown out due to lack of standing, the most recent ruling striking down Prop 8 as unconstitutional would be upheld. But that would limit the decision to this specific situation in California — it would have no bearing on federal law or policy.
On to Day 2! United States v. Windsor is a little different than Hollingsworth. Edith Windsor, the plaintiff, spent 42 years with her partner, Thea Spyer, before the two were married in 2007. Section 3 of the Defense of Marriage Act defines marriage as between one man and one woman (because, sure, what else was Congress doing that day in 1996?). DOMA allows the federal government to deny certain benefits to same-sex couples (like federal tax exemptions, for example). So when Spyer died, Windsor was stuck with a $363,000 tax bill — one that a heterosexual surviving spouse would not have had to pay. In Windsor, the Court isn't deciding whether or not gay couples have a constitutional right to be married — instead, the Court is trying to decide whether it's unconstitutional for the federal government to refuse to recognize otherwise valid state marriages.
So, to be clear, if the Court strikes down parts of DOMA as unconstitutional, it would not force states that don't recognize gay marriage to start issuing licenses to gay couples. Gay couples wishing to be married would still have to get hitched in one of the nine states plus Washington, D.C. that recognize same-sex marriages, and then just chillax and watch as the federal bennies start rollin' in.
A significant portion of today's oral arguments was focused again on standing. Here's the deal: Obama's Department of Justice thinks that DOMA is stupid, and they don't want to defend it anymore. House Republicans love it and they don't want DOMA to die alone. House Republicans, including John Boehner, sent over some lawyers from the Bipartisan Legal Advisory Group (BLAG. BLAG, you guys) to defend their sweet lady love. They did this because they don't want your darling lesbian aunties in flowing silk pantsuits to exchange topaz jewelry in the desert.
Harvard law professor Vicki Jackson argued the issue of standing for the Court. Jackson doesn't think that BLAG has suffered an injury sufficient to create standing. She also argued that the Court should wait to decide the merits of DOMA for another day, probably because nobody wants a bunch of weird old Methuselahs making this important decision right now. BLAG lawyers think they do have standing, since Congress's single most important function, other than selling out to oil companies, is passing laws and defending them once passed. They argue that an "injury" will exist if Congress's law-making function is impeded through the invalidation of their silly bigot-law. Also, BLAG.
As for the actual constitutional arguments, the main brouhaha was whether the federal government has the right to define marriage at all, since family law is generally governed by individual states (that's why you get a marriage license from a particular state, not the federal government). Kennedy, Breyer, Sotomayor, Ginsburg, and Kagan all hammered on the propriety of the law and the role of the federal government when it comes to defining marriage. The lawyer for the DOJ really wanted the justices to focus on the civil rights aspect of this, but the Court seemed more content to focus on federalism (states' rights) instead. A lot of people may not care how exactly the court decides to strike down DOMA, as long as they strike it down. But Equal Protection decisions are more fun because those opinions generally include all sorts of flowery language that acknowledges unfairness and injustice — it's a validation of the struggle. On the other hand, states' rights jurisprudence is like taking a really, really long nap.
It seems the justices may be poised to strike down at least some parts of DOMA — the wizards over at SCOTUSblog think there's at least an 80% chance that the Court will. The justices will conference later this week in the heart of Khazad-dûm, where Justice Clarence Thomas will call the meeting to order with his fiery whip of many thongs, and they'll start the decision-making process. From there, the justices will proceed to their marination chambers, leaving us all to wonder: Will gay people finally have the right to divorce their spouses for leaving wet towels on the bed?
A decision in both cases should come down some time in June. In the meantime, you can listen to the last two days' worth of oral arguments here.
Meagan Hatcher-Mays is a third-year law student at Washington University in Saint Louis. She teaches "Women & the Law" to a group of brilliant undergraduates. She yells a lot on Twitter.
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