Like last year’s Supreme Court term, which began with only a handful of high-profile cases on the Court’s calendar and concluded with major attempts to invalidate decades of immigration law and nearly two centuries of unambiguous precedents establishing that the Affordable Care Act is constitutional, many of the blockbuster issues the justices are likely to hear this term have not yet been added to the Court’s docket. They include at least one major gay rights case, a challenge to DNA collection by law enforcement, and an effort to gut the most important voting rights law in American history:
As a matter of legal doctrine, same-sex marriage is one of the easiest questions the justices will likely face this year. Forty years ago, the Court held that minorities who are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” are entitled to the most robust constitutional protection against discrimination. Clearly, these words describe LGBT Americans. It is unclear, however, that five justices will be as ready to bring marriage equality to Alabama as they will be to restore it in California.
When the Ninth Circuit struck down the anti-gay Proposition 8 last February, it relied on a rationale that seemed tailor-made to avoid this Alabama problem. According to the Ninth Circuit, states that once provided marriage equality may not take it away, but the question of whether equality is mandated nationwide remains open. This rationale may avoid the political morass of a broader recognition of what the Constitution provides to gay couples, although it is unlikely to last as more than the stopgap that it was obviously intended to be.
The cases challenging the Defense of Marriage Act present a different problem. That law denies federal marriage benefits to gay couples, but still allows states to provide gay couples with their full constitutional rights under state law. The First Circuit struck down DOMA in an opinion written by a very prominent conservative judge, but it also relied in part on an argument that bears a disturbing resemblance to arguments conservatives used in the Affordable Care Act case to attack Medicaid. As ThinkProgress explained when this decision came down, “America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system,” but conservative justices like Kennedy and Thomas could attempt to use marriage equality as a vehicle to drastically undermine federal power — and escape the baneful eye of progressives because their decision would also usher in equal rights for many same-sex couples.
The cleanest solution remains simply declaring that the Constitution’s guarantee of “equal protection of the laws” applies universally in all fifty states, but it is not clear that there are five justices prepared to do so.