The U.S. Supreme Court took the first step toward negotiating its way through complicated questions of same-sex marriage on Friday by agreeing to review cases concerning both Proposition 8, California’s ban on same-sex marriage, and the Defense of Marriage Act (DOMA), the federal law that prevents the federal government from recognizing same-sex marriages.
KQED’s Scott Shafer asked U.C. Davis constitutional law expert Vikram Amar to explain the ramifications of the court’s selections. Edited transcript:
SCOTT SHAFER: Before the court decided to hear this case, there were a lot of questions about how broad a question the Supreme Court would take up, whether this could be a ruling applying nationwide or just to California. Which way did they decide to go?
VIK AMAR: We don’t know. Remember, the Ninth Circuit Court invalidated Prop. 8. on grounds that were very specific to Prop. 8 and wouldn’t necessarily invalidate same-sex marriage bans in other states. That was an attempt by the Ninth Circuit to narrow the case so as to keep it away from the Supreme Court. That didn’t work. The Supreme Court is going to take the case. But whether they decide it on the same narrow grounds that the Ninth Circuit Court did, or they use it to more broadly accept or reject gay marriage is open to question, and we won’t know until the Supreme Court decides next spring.
SCOTT SHAFER: The legal team for Prop. 8 held a phone conference call shortly after the Supreme Court announced its decision, and Ted Olson was asked how they were going to approach the briefs in this case. He said they would argue on the broad merits of the case, the same way they did before the Ninth Circuit. He said, “The fundamental right to marry… is fundamental to all citizens… It is one of the most fundamental rights, if not the most fundamental right that we have in this country.”
VIK AMAR: The Supreme Court could rule narrowly if they agreed with the Ninth Circuit that there are fundamental problems with Prop. 8, for example the fact that Prop. 8 repeals same-sex marriage, rather than never recognizes it in the first place.
But my guess is that the justices aren’t going to be that moved by the Ninth Circuit’s reasoning. And if they rule on the merits, they’d probably go a little bit more broadly than the Ninth Circuit did in one direction or the other. But remember, the Supreme Court today asked the parties to brief it about another question, which has been looming throughout, and that is whether the sponsors to Prop. 8 are proper parties to defend the measure in federal court.
SCOTT SHAFER: I believe they also asked that question in the DOMA case they took up.
VIK AMAR: They did, because the Obama Administration has declined to defend DOMA, and in fact agrees with the lower courts that it’s unconstitutional, which led the House of Representatives to hire its own outside lawyers headed by Paul Clement. The court today wondered aloud, and asked the parties to brief it on whether Paul Clement and his group is a proper party to defend DOMA. If the justices were to say there is no one to defend Congress’s work product when the president doesn’t, that really opens up the door to broad presidential powers to essentially ignore and thus undermine what Congress does.
SCOTT SHAFER: How does the cultural landscape affect the justices on these big questions?
VIK AMAR: Well, I think it’s not just the important fact that a few weeks ago same-sex marriage proponents won at the ballot box for the first time in state initiatives. I think it’s more the sense that those victories are going to become more common in the future. It’s not just the electoral votes, it’s the polling data and the attitudinal data that we have behind those results that suggests there’s going to be major change going forward. Now that might incline some justices to want to get out ahead of the issue and to invalidate bans on same-sex marriage if ultimately that’s the way the populace is going. Other justices might say, “Look, if that’s the way the states are going there’s no reason for the courts to stick their noses in, just let it happen more slowly.”