The case for marriage equality does not have a legal problem. Indeed, the sheer absurdity of the arguments advanced against it prove this point. It does however, have an Alabama problem. That is, while there are five justices on this Supreme Court who mostly supported gay rights in the past, it is less clear that there are five votes prepared to tell the old Confederacy to stop hating on gay couples. On the lower courts, both liberal and conservative judges twisted themselves into pretzels to craft legal rules that guarantee equality in California and Massachusetts without extending the blessings of liberty to Alabama.
Yesterday, the Obama Administration offered the Supreme Court its proposal for how the justices should navigate this Alabama problem. The Department of Justice’s brief calling for California’s anti-gay Proposition 8 to be struck down is deliberately coy about whether the Constitution’s promise of equality applies in the state of Alabama. When it does hint at what is almost certainly the administration’s true answer to this question — YES! — that answer is always caveated with language suggesting that the Court could put off the Alabama question until another day. In the end, the brief never actually calls for nationwide marriage equality, instead proposing a middle ground where civil unions and similar arrangements are converted into full marriages:
Proposition 8 nevertheless forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status—domestic partnership—distinct from marriage but identical to it in terms of the substantive rights and obligations understate law. . . . Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partner-ships or civil unions cannot match.
Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.”
So, on its face, the Obama Administration’s proposal would merely upgrade these eight civil union states into full marriage equality states, resulting in just 17 states and the District of Columbia providing full rights to gay Americans. At first glance, the brief appears to say that following the Constitution should remain optional in the rest of the nation.
This appearance is deceiving, however. The most important aspect of the brief is not the convoluted remedy it proposes — extending equality to some states and not others — it is the legal standard it proposes for all gay rights cases in the future. The brief calls for laws that discriminate on the basis of sexual orientation to be subject to “heightened scrutiny,” a standard that will inevitably lead to marriage equality for all once it is recognized by the Supreme Court.
In essence, the courts treat any law that is subject to heightened scrutiny as preemptively unconstitutional. This presumption can be overcome, but only if the law is at least “substantially related to an important governmental objective.” No marriage discrimination law can survive this very probing scrutiny, and anti-gay attempts to defend discrimination under this standard often descend into self-parody.
Prop 8’s proponents’ main argument is that marriage discrimination is necessary because the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society” — an explanation of marriage that would no doubt come as a shock to anyone who has ever been in one. As the gay couples challenging the law explain in their brief, Prop 8’s defenders wrote a 65-page brief on the subject of marriage and “do not even mention the word ‘love.’”
So the upshot of DOJ’s brief is that it does not call for marriage equality for all today, but it would establish a legal standard that would all-but-certainly lead to universal marriage equality in the few years it would take for the next round of marriage equality cases to make their way to the Supreme Court. The Obama Administration is betting that there are not five justices ready to extend the Constitution to Alabama right now, but they are also betting the Court will be ready to send a clear message to anti-gay states: “equality is coming.”