Last modified: Thursday, March 28, 2013
March 28, 2013
Same-sex marriage cases: Questions don't indicate how justices will rule, IU profs say
By Mike Leonard
March 28, 2013, last update: 3/28 @ 1:27 am
Indiana University law professor Deborah Widiss says it's always risky to "read the tea leaves," trying to predict U.S. Supreme Court decisions based on the questions the justices ask during oral arguments.
Questions may be indicative of a justice's intellectual leanings in a case or just the opposite -- probing a line of thought the justice isn't inclined to buy into but wants to hear explored in case there's a point the justice hasn't fully considered.
Maurer School of Law colleague Steve Sanders agrees, but said Wednesday afternoon there's reason for optimism for proponents of same-sex marriage regardless of the outcome of separate cases argued before the court on Tuesday and Wednesday. "It does nothing but elevate the topic in the national conversation, and there's always something to be said when something gets to the level of the Supreme Court," he said.
While both days were devoted to the subject of same-sex marriage, the cases were separate and distinctly different.
Widiss said Tuesday's debate over the constitutionality of California's ban on same-sex marriages was unusual from the start because it carried with it a legitimate question of whether the court should hear the case at all. California passed Proposition 8, a ballot initiative that banned same-sex marriage, but an appeals court ruled that the ban was unconstitutional.
"Normally, when a law is challenged as unconstitutional, the state attorney general brings an appeal," Widiss said. "Here, the state attorney general agreed with same-sex couples in the case and wasn't willing to appeal the decision overturning the ban."
Proponents of the same-sex marriage ban appealed the decision to overturn it, and opponents of the ban hired two high-powered attorneys -- one liberal and one conservative -- to argue to uphold the lower court decision before the Supreme Court. "That created the jurisdiction issue of whether the attorneys for the same-sex marriage side had standing to argue the case before the court," Widiss explained. "The question becomes who has suffered real injury. It's not as though anyone can go into court and challenge any law. It created a hard question for the Supreme Court."
Tea leaves aside, Widiss agreed with other commentators who said it looked like the justices were genuinely focused on the jurisdiction issue and may well "punt," as some have said, by simply ruling that the advocates of upholding the lower court decision did not have the status to argue the case. That would leave intact the lower court ruling declaring the gay marriage ban in California unconstitutional.
"Maybe it is an issue better left to be worked out for a little while at state legislatures and at some point return to the (Supreme) court," Widiss said.
Wednesday's case questioned the constitutionality of the Defense of Marriage Act of 1996, which denies federal benefits to same-sex partners, even in states where same-sex marriages and civil unions have been approved. Sanders, whose areas of expertise include constitutional law and sex and gender studies, said most observers believed the Supreme Court would focus on the issue of equal protection under the law and whether the denial of benefits such as inheritance of money, property and insurance could be withheld from committed same-sex partners.
Most news outlets reported late Wednesday that the justices clearly focused on whether the legitimacy of marriage statutes was a matter for states to decide and not the federal government. Justice Anthony Kennedy, the proverbial swing vote in a divided Supreme Court, appeared to be focused on the states' rights issue and said the court should respect "the historic commitment of marriage and the rights of children to the states."
"Honestly, that's not where people saw the court going on this," Sanders said. "We've come to think of states' rights as a phrase that's almost become a set of dirty words. States' rights was an argument for segregation and has almost become a euphemism for racism. It may be rehabilitated as a legitimate argument should the court rule that who's eligible to be married is an issue to be decided by the states."
Sanders said such a decision would not necessarily be a victory for gay and lesbian rights. But it would leave intact the legality of same-sex marriage already granted by nine states and extend federal benefits to couples legally married in those states. The ruling would have no effect in Indiana, for example, where same-sex marriage is banned.
But that would create a new question, the law professor said. "I think the next case would be, what happens to the tens of thousands of gay couples already married, who decide to move to a state, such as Indiana, where their marriage is not recognized?" he asked. "Do their marriages just disappear? Do their benefits disappear? That denies the most fundamental due process, if you just move into another state and your previously held rights disappear."
Most national corporations already have rallied to the side of same-sex benefits, arguing that recognition of same-sex couples protects individuals already employed by them and enables them to recruit the best and brightest job candidates. "If you're a same-sex couple and in a same-sex marriage in Massachusetts or New York and your company wants you to relocate to Indiana or Alabama, employees are going to start balking and refusing transfers," Sanders said.
"So should the court rule against the Defense of Marriage Act, that's pretty clearly going to be one of the next questions to be asked," he said. "To take something away from you that you enjoyed in one state is intuitively worse than to not grant benefits in the first place. To treat that marriage like a piece of worthless foreign currency is going to be difficult to defend."