Next week marks a rare moment in the Roberts Court’s history, an opportunity for this Supreme Court to actually make the law better than it was before they decided to weigh in on an issue. Although Justice Anthony Kennedy, the Court’s ostensible swing vote, is a hardline conservative on campaign finance, health care and corporate immunity to the law, his record on gay rights is relatively moderate. Kennedy authored two of the most important gay rights decisions in the Court’s history and is viewed as a likely vote to strike down the anti-gay Defense of Marriage Act.
As with so many things involving the Supreme Court, however, the devil is in the details. The Court’s decision in the DOMA case, United States v. Windsor, could extend the Constitution’s promise of marriage equality to all Americans, but it could just as easily reach a more narrow result or even sow significant seeds of confusion in the the law governing married couples. Broadly speaking, here are four ways the Supreme Court could halt DOMA, arranged in order from most desirable to least desirable:
- Marriage Equality For All: The simplest, and most obvious solution, is for the justices to just follow the Constitution. The Constitution guarantees “the equal protection of the laws” to all people within the United States, and this guarantee is most robust when applied to groups that have experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” As LGBT Americans are undoubtedly such a group, the Court should simply strike down all marriage discrimination laws and declare that every state must come into compliance with the Constitution.
- Marriage Equality In New York, Punt On Alabama: Although marriage discrimination cannot be squared with the Constitution, Justice Kennedy has a history of deciding gay rights cases on very narrow grounds. Neither of his two leading gay rights opinions followed the ordinary framework applied to laws that deny equal rights to a group historically subject to irrational prejudice, instead relying on novel and narrow reasoning. For this reason, it is possible that the Court will strike DOMA — thus extending federal marriage rights to same-sex couples — but punt on the larger question of whether every state must comply with the Constitution. If this happens, a key question is whether the justices apply “heightened scrutiny” to DOMA, a kind of skeptical constitutional analysis that will make it very difficult for any anti-gay law to withstand court review in the future.
- No Jurisdiction: Easily the messiest way the justices can resolve this case is by ruling that they do not have jurisdiction to hear it in the first place — a real possibility in light of the fact that they scheduled 50 minutes of argument time on the question of whether the Court has jurisdiction. If the answer is “no,” the result could be a big, sloppy mess. Normally, when the Supreme Court decides that it lacks jurisdiction over a case, it also holds that the case should never have been brought in federal court to begin with. This case, however, presents an usual circumstance where the Supreme Court may not have jurisdiction to hear an appeal even though nearly everyone agrees that the trial court that sided with the plaintiff challenging DOMA was within its lawful authority when it did so.Because the circumstances of this case are so unusual, it’s not entirely clear what happens if the Court holds that they lack jurisdiction. One well-known attorney told ThinkProgress that it would mean DOMA is invalid in New York and New England, where federal appeals courts struck it down, but valid elsewhere. Professor Marty Lederman says the answer depends on why the Court concludes it lacks jurisdiction, but one possibility is that the administration could simply cease enforcement of DOMA “in the absence of any possibility of judicial resolution.” This is obviously a messy solution, and it is one that would lead to DOMA awkwardly lurching back to life if an anti-gay president takes office in the future.
- The Tenth Amendment Nonsense: The First Circuit’s decision striking down DOMA includes an odd states’ rights section that resembles some of the arguments conservatives used to challenge Medicaid. This kind of argument could resonate with Justice Kennedy or even Justice Clarence Thomas, who has previously described an anti-gay law as “uncommonly silly.” Indeed, if all five conservatives embrace this view, they could potentially do significant damage to the social safety net under cover of a decision that most progressives would celebrate. Nevertheless, this outcome is unlikely, as at least one member of the conservative bloc is unlikely to join any pro-gay decision.