Yesterday, the Supreme Court announced that it would hear appeals in two cases involving same-sex marriage. The Court will decide the fate of:
- The Defense of Marriage Act (DOMA): can the federal government define “marriage” for the purpose of eligibility for federal benefits?
- California Proposition 8: can a state define “marriage” as the union of one man and one-woman?
The two cases should raise distinct issues. When considering DOMA the Court should address whether the law raises any federalism concerns. I think it does (even though such concerns may not be fatal to the law). Traditionally, when federal law refers to “marriage” or related concepts, the feds defer to state law to determine whether a given marriage is valid. DOMA doesn’t force states to change their laws, but it puts a thumb on the scale. The Court needs to discuss under what circumstances the federal government can (how shall I put this?) encourage states to change their internal laws. For example, can the federal government create its own definition of a valid corporation, etc.?
But, alas, the Supreme Court may not reach the federalism issue because the lower courts barely touched it. In the DOMA case (Windsor v. United States), the Second Circuit basically used an Equal Protection analysis. What is notable is that the court held that traditional marriage laws must meet a heightened level of scrutiny because they presumptively discriminate against a “quasi-suspect class” (homosexuals) who, collectively, lack political power.
As our own Richard Epstein has often pointed out, once a court decides to apply heightened scrutiny, the law under review is doomed. Such was the case in Windsor, where the court dismissed in the most cursory fashion imaginable, the federal government’s interest in defining marriage. The concept of “preserving the traditional understanding of marriage” is brushed aside in two short paragraphs. And “encouraging responsible procreation?” Again, two paragraphs is all it gets. As Nancy Pelosi might say: “are you serious?”
The Prop 8 case is a Ninth Circuit decision penned by the paleo-liberal judge Stephen Reinhardt. Reinhardt also based his decision on Equal Protection. Although he claimed that his decision was limited only to the specific facts of the California law, the rationale is fatal to other traditional marriage laws.
In the Equal Protection rulings, the lower courts have been ignoring Supreme Court precedent — we’ll see if the High Court lets them get away with it. In 1972, the Court held that Minnesota’s traditional marriage law did not raise any issue under the Equal Protection Clause (or any other constitutional provision) (Baker v. Nelson). The Court has never revisited that decision. In 2003, when the Court struck down anti-sodomy laws, the majority promised that its decision (Lawrence v Texas) had no bearing on same-sex marriage because there are other reasons for a state to preserve traditional marriage “beyond moral disapproval of an excluded group,” as Justice O’Connor put it.
But that was then, and this is 2012. Lower courts have now assumed the power to overturn binding Supreme Court precedent and to declare that Justice O’Connor failed to perceive the anti-gay prejudice behind all traditional marriage laws. Stay tuned.