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Posted Dec. 13, 2012

How Will the Supreme Court Rule on Same-Sex Marriage?

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Sayler, Shadel

From left: University of Virginia School of Law professors Kim Forde-Mazrui, Richard Schragger and G. Edward White.

The Supreme Court has agreed to hear a pair of cases on same-sex marriage for the first time, prompting four University of Virginia School of Law professors to anticipate how the justices may rule.

Contact: Brian McNeill

In United States v. Windsor, the court will hear a constitutional challenge to the Defense of Marriage Act, a 1996 federal law that denies benefits to gay and lesbian couples married in states that allow same-sex marriage. In the second case, Hollingsworth v. Perry, the court will hear a challenge to the 2008 ballot initiative in California that banned same-sex marriage in the state.

Same-sex marriage is legal — or will be soon — in nine states and Washington, D.C. Thirty states, including Virginia, have amended their constitutions to ban same-sex marriage.

Kim Forde-Mazrui
Forde-Mazrui's scholarship focuses on equal protection, particularly involving race and sexual orientation.

"The Supreme Court has agreed to review a federal and a California law that deny same-sex marriage. I’ll be watching for two things. First, will the court require that the justifications offered in defense of the laws be merely plausible or will it require that they be persuasive? For example, if denying same-sex marriage is defended as promoting the best interests of children, will the court accept this justification if it finds it conceivably true or will the court require credible proof that it is actually true? If the former, the court may well uphold the laws, if the latter, it will probably strike them down.

"Second, if the court holds the laws unconstitutional, will it do so under the due process clause, as an abridgement of the right to marry, or under the equal protection clause, as discrimination on the basis of sexual orientation?

"The first approach would emphasize the importance and evolving meaning of marriage, while the latter approach would emphasize the equal concern and respect owed to gay and lesbian people. Predicting the Supreme Court is a hazardous endeavor, but I will venture that the court will, under the equal protection clause, invalidate California’s Proposition 8 and thereby uphold same-sex marriage in the nation's most populous state."

Richard Schragger
Schragger's areas of expertise include local government law, constitutional law, and church and state, and he has authored articles on a number of topics, including local recognition of same-sex marriage.

"A consistent federalism approach would result in the court striking down the federal law (the Defense of Marriage Act) and upholding the state law (California's Proposition 8). States would get to decide who gets to marry and federal benefits would follow. This outcome would put the court on the wrong side of history, however. Increasingly, Americans — especially those under 30 — see discrimination against gays and lesbians as just another form of bigotry. Future generations will understand bans on same-sex marriage to be no different than the anti-miscegenation laws of an earlier time, which barred blacks and whites from marrying. And they will be right."

G. Edward White
White is an expert in legal history, constitutional law, Supreme Court history, torts and legal process.

"The fact that the court has taken challenges to both California Proposition 8 and the Defense of Marriage Act at the same time, and consolidated the cases for argument, is suggestive. Since both cases could be disposed on Article III standing grounds — the theory in the first case being that ballot proponents lack standing to defend propositions, and in the second case that members of the House of Representatives who supported DOMA lack standing to defend it once the Justice Department has declined to do so — it appears that a court majority may be poised to make a statement about the constitutionality of restrictions on same-sex marriage.

"On the other hand, the court specifically asked for argument on the Article III standing issues. It may be that a majority will surface for disposing of this set of challenges on procedural grounds and waiting for another set that more squarely raise the constitutional issues.

"If I were betting (it is extremely hazardous to bet on the outcomes of Supreme Court cases), I would bet that the court reaches the constitutional issues this time. I believe there is currently a narrow majority for declaring a constitutional right to marry persons of the same sex, and the court has taken notice of the rapidly growing public trend for tolerating same-sex marriage. This is a court that doesn't hesitate to weigh in on contested public issues, and it contains several justices who are not lacking in confidence about their judgments is constitutional cases."

Kerry Abrams

Kerry Abrams

Kerry Abrams
Abrams is an expert in citizenship law, immigration law, constitutional law, legal history and family law, and has written articles on a variety of topics, including the marriage equality movement.

Windsor seems to me the easier of the two cases for this court; striking down DOMA would not necessarily lead to same-sex marriage throughout the country, but would instead leave marriage regulation to the states.

Perry, on the other hand, invites the Court to make a determination of whether the U.S. Constitution provides a right to marry a person of the same sex under the Equal Protection or the Due Process Clauses of the 14th Amendment. I filed an amicus brief in Perry urging the court to find that there is a fundamental right to marry, and I hope that is what the justices decide.

But the court could decide instead to affirm the Ninth Circuit’s narrow holding. There, the court held that because California provides domestic partnerships that give the same benefits as marriage, and because California once offered marriage to same-sex couples and then took it away, its refusal to continue providing marriage is impermissibly irrational. If the Supreme Court agrees with that assessment it could restore marriage equality to Californians without affecting the law of most other states. Although this compromise approach might be attractive to some of the current justices, it will not solve the problem of instability for families who move from one state to another.

Updated March 22, 2013