Same-sex marriage at the Supreme Court: a scorecard

by Walter Olson on March 24, 2013

On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.

The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.

The Cato Institute, with which I’m affiliated, has filed amicus briefs in both cases. In its active amicus program Cato has long taken a broad view of Equal Protection Clause protections, and in this case joined with the Constitutional Accountability Center to file briefs in Perry and Windsor urging that marriage be made available without distinction of sex on Equal Protection grounds. (It’s an “odd-couple” alliance in that CAC is known for its progressive view of the Constitution and regularly winds up on the opposite side from Cato on other high court issues such as ObamaCare and campaign finance.) Ilya Shapiro discusses Windsor and Perry; Constitutional Law Prof Blog provides an analysis of the Cato/CAC Windsor brief.

The Heritage Foundation, which of late has crusaded against same-sex marriage on both legal and substantive grounds, collects and summarizes some of the many briefs filed by those on its side of the controversy.

Quite a few scholars and public commentators have invoked federalism and called attention to possible resolutions that defer to the various states. A “federalism scholars’ brief” in DOMA (described here by Ilya Shapiro) signed by, among others, four law professors who blog at Volokh Conspiracy (Jonathan Adler, Dale Carpenter, Randy Barnett, and Ilya Somin) supports striking down section 3 of DOMA not directly on Equal Protection grounds, but because of its attempt to inject federal policy into a field (domestic relations) historically occupied by state law. [More: Jonathan Adler exchange with Nicholas Rosenkranz and Ed Whelan.]

Separately, in a Wall Street Journal piece, widely respected Stanford law professor and former judge Michael McConnell writes that the pair of cases “offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.” To do that, he suggested the Court might want to dodge Perry on standing grounds while upholding Windsor on the ground “that DOMA improperly intrudes on the reserved powers of the states.” Syndicated columnist George Will, who is critical of the attempt to invoke social science as a reason to overturn Prop 8, calls DOMA an intrusion on traditional state law and suggests that “a jurisprudence true to conservative principles, properly understood” would get rid of it.

The Federalist Society has a symposium with two defenders of Prop 8/DOMA (John Eastman and Nelson Lund) and two critics (Dale Carpenter and Ilya Shapiro). Libertarian law professor Richard Epstein finds originalism at odds with liberty in the cases. Ilya Somin, tracking Georgetown’s Marty Lederman, outlines the Court’s options in the Prop 8 case.

Some of the amicus briefs on the traditionalist side invoke the “gay marriage is bad for children” argument, which I’ve contested before. Recent revelations confirm suspicions that in the rush to publication of the extremely controversial Mark Regnerus study, often misrepresented as indicating bad outcomes from same-sex parenting, use in Supreme Court argumentation was one consideration.

In the coming week I’ll be doing public events in Washington, D.C. as well as broadcast commentary on the unfolding story. I’ll tackle those in another post. (Title elaborated to be less generic.)(& welcome Doug Mataconis/Outside the Beltway readers)

{ 3 trackbacks }

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{ 3 comments }

1 StraightGrandmother 03.24.13 at 1:31 am

Your suspicions on Regnerus were right.
You are probably going to want to see this evidence also.
http://www.scribd.com/doc/129660276/Mark-Regners-and-Witherspoon-Institute-Collaboration-Report

2 JeffreyRO5 03.24.13 at 10:31 am

Nice summary. I do have to point out that the Regnerus “study” is no longer controversial, but has been convincingly rejected by any impartial authority on parenting and human sexuality. Regnerus’ claims, like the one that the adult children of gay fathers are more likely to commit suicide, were outrageous and not based on any data he collected. Many of his claims are utter hearsay. Ironically, even his data collection methods are suspect, even as he ignored his data to draw the agenda-driven conclusion he desired.

Oddly, he compared intact families with straight parents, to broken homes with a potential mixed-orientation relationship where one or both parents had an affair, and then proceeded to blame poor outcomes for the children involved on sexuality. Either Mr. Regnerus, a tenured professor at the University of Texas, hasn’t a clue how to analyze data, or he had an agenda (his own or his sponsor’s).

3 Deoxy 03.26.13 at 11:12 am

I’m not familiar with the Regnerus study at all (it’s new, apparently?), but there have been studies on this topic for some time, and the general result is pretty simple, really:

Traditional marriage, at the societal level, produces more children, and it produces higher quality citizens from those children.

I personally am a very traditional type in my personal beliefs, but my political opinions tend to be very libertarian. As such, I think the government should pretty well get its nose out of our business, barring some kind of pretty specific reason.

The issue of children would be sufficient for that, assuming it’s true (I think it is, but that’s not the point).

Otherwise, the government should get out of marriage altogether – generalize the benefits given in marriage, some with any one person, for simplicity and legal standing purposes, but most with whoever you want…. the case for it only involving two people also rests on the traditional view of marriage. As such, any ruling for SSM is also a ruling for plural marriage (and will become so in fairly short order).

Bestiality is something different altogether, so I won’t go that far as some have (which is very unhelpful, really), but the logical consequence of the arguments for SSM work exactly as well for plural marriage. Let’s not pretend otherwise.

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