Three Potential Bombs Hidden In The Supreme Court’s Marriage Equality Cases

The constitutional case for marriage equality is simple and straightforward. Under our Constitution, all people are entitled to the “equal protection of the laws,” and that includes gay couples. Moreover, under well-established Supreme Court precedent, minority groups that possess a common trait that they have no control over and who have historically been subject to irrational discrimination are entitled to heightened protection. This is why some of the most conservative judges in the country held the anti-gay Defense of Marriage Act unconstitutional.

The opinion the Supreme Court ultimately hands down in June, however, could be anything but simple. On Friday, the Supreme Court did not simply agree to hear arguments on whether DOMA and California’s Proposition 8 are constitutional, they also announced that they are uncertain whether they are even allowed to consider these cases in the first place. This announcement, in addition to a looming issue raised by a lower court, could lead the Court to turn the law into a sloppy mess.

  • Retroactive Vetoes:

Last year, the California Supreme Court held that the state’s governor and attorney general could not, acting without anyone else’s support, effectively kill a ballot initiative by refusing to defend it on appeal after a trial court struck it down. The Supreme Court revived a similar issue in both the Prop 8 and the DOMA cases — whether the justices are allowed to hear these appeals in light of the fact that neither the California government nor the U.S. Department of Justice will defend marriage discrimination. In DOJ’s absence, the mantle of defending discrimination has fallen on House Republicans.

If the justices decide they cannot hear the Prop 8 case, the almost certain impact is that the lower court’s order striking down the anti-gay ballot initiative would stand, and marriage equality would be restored in California. As explained below, things get quite a bit more complicated if the justices decide they cannot resolve the DOMA case, but at least some gay couples would escape the grip of federal marriage discrimination if the Court reaches this conclusion.


Nevertheless, progressives should not celebrate such an outcome. As the lawsuits challenging the Affordable Care Act proved, it is not difficult for conservatives to find purely ideological judges willing to reach any number of indefensible outcomes. The law’s best defense against lawless judges is the appeals process. If the justices allow that appeals process to be cut short if the government refuses to defend a law — an outcome Obama Justice Department has actively tried to avoid in this case — then there is little preventing a future president from killing anything from Medicare to the Affordable Care Act by finding a trial judge willing to strike the law and then refusing to defend it.

  • Mass Confusion

If the justices decide they lack jurisdiction to hear the DOMA appeal, things could get ugly fast. The First and Second Circuit courts, which together encompass New York and New England, both held DOMA unconstitutional, but most Americans live in a circuit where the courts have not resolved this question.

Striking DOMA only in a few states would not simply deny same-sex couples their basic constitutional rights, it would also be an administrative nightmare. A married same-sex couple that lives in New York would be taxed as a married couple, but what about a similar couple that lives in Maryland? If the New York couple winters in Florida, are they taxed as married or single people? What if they move permanently to Florida half way through the year? If the military transfers a lesbian officer and her wife from a station in New York to one in Kentucky, does the officer’s wife lose her health benefits? Does a wealthy businessman’s husband lose his estate tax exemption if their spouse dies on a trip outside the First or Second Circuit?

It is possible that the First or Second Circuit could attempt to enjoin the entire federal government from enforcing DOMA — but it is not clear this order would apply nationwide. According to Brian Wolfman, an expert on federal jurisdiction with the Georgetown University Law Center, the Reagan Administration routinely used “non-acquiescence rulings” to avoid paying disability benefits in jurisdictions where their policies had not yet been struck down. President Obama might willingly comply with a nationwide order halting DOMA, but a future president may openly defy it.

  • Looming Tentherism

In an otherwise excellent opinion striking down DOMA, the First Circuit also invoked an odd states-rights argument similar to one conservatives have used to attack Medicaid — essentially arguing that DOMA stands on weaker constitutional footing because it might impact state lawmakers’ decision-making. It is possible that conservative justices such as Anthony Kennedy or even Clarence Thomas could attempt to use an opinion striking DOMA as a vehicle to undermine the safety net. Simply put, the wealthiest, most powerful nation that ever existed should not have to choose between the blessings of equality and the promise that no American will die because they cannot afford health care. A justice like Kennedy, however, who has both favored gay rights and opposed access to health care, may see things differently.