So, Uh, What's the Supreme Court Doing About Gay Marriage? An Idiot's Guide

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.

Image via Steve Heap/Shutterstock