by Joseph Backholm
Next week the Supreme Court is expected to issue a decision on same-sex marriage. The court will be deciding two lawsuits, challenging the constitutionality of the federal Defense of Marriage Act (DOMA) and California’s Prop. 8. Both of those laws define marriage as a relationship between a man and a woman.
Those challenging these laws are arguing that it is actually unconstitutional to define marriage as a relationship between a man and a woman. They have asked the court to strike down these laws and impose their definition of marriage on every state in the nation regardless of how the people in that state feel about the issue.
However, the decisions are not likely to be as simple as saying “same-sex ‘marriage’ is allowed” or “same-sex ‘marriage’ is not allowed”.
Here is a look at the various scenarios that could result from their decision.
The most significant legal issue that doesn’t directly address the constitutionality of marriage is the issue of standing. Standing is a legal concept that addresses who can be a party to a lawsuit.
Typically, you can’t be a party to a lawsuit if you aren’t personally involved. You may be angry about the fact that someone ran into your mother’s car, but you can’t sue them on behalf of your mother. She has to do it herself. You have to actually be a party with an interest in the case.
In the case of legal challenges to state or federal laws, the job of defending those laws falls to the U.S. Department of Justice or the Attorney General of the state. They have standing. However, the U.S. Department of Justice and California’s Attorney General both have refused to defend DOMA and Prop 8.
In their absence, the U.S. House of Representatives and the Prop 8 campaign have stepped in to defend the laws. Plaintiffs in these lawsuits have challenged their standing. So, before deciding the constitutionality of the issue, the court must decide whether the parties defending the marriage laws in court are legally able to do so.
There is a possibility the court could make a decision on the standing issue that avoids the underlying question entirely, which would be anticlimactic.
However, assuming the court does rule on the underlying marriage question, here are the range of options that are likely to come from the Court’s rulings.
- Win, DOMA: The Supreme Court acknowledges that the constitution does not create a constitutional right to marry someone of the same gender and recognizes Congress’ right to define marriage as a relationship between a man and a woman.
- Win, Prop 8: The Supreme Court reverses the Ninth Circuit decision saying that Prop 8 is unconstitutional and recognizes the right of the people of California to define marriage however they wish.
- Partial Loss, DOMA: The Supreme Court strikes down the Defense of Marriage Act on federalism grounds. This decision would not invalidate any of the state laws or constitutional amendments, but would force the federal government to recognize same-sex “marriages” from the states.
- Partial Loss, Prop 8: The court says that Proposition 8 is unconstitutional because it was motivated entirely by animus. The important question in a decision like this would be whether it applies only to the facts of California, or whether it would effectively ban any state that has redefined marriage to once again define it as a relationship between a man and a woman. This kind of decision would void Prop 8 in California, but would not affect the laws in other states.
- Loss: Roe v. Wade of Marriage: The worst case scenario for natural marriage supporters is that the Supreme Court would issue a Roe v. Wade of marriage and declare a constitutional right to marry someone of the same gender. This kind of decision would strike down every state constitutional amendment and law defining marriage as a relationship between a man and a woman, and prevent the states from debating the issue.
Whatever happens next week at the Supreme Court, the discussion about marriage will not be over. Even Roe v. Wade only started a movement that is now winning the debate over abortion.
This will be an important decision in the ongoing debate over the definition of marriage.
But perhaps more critically, it could determine whether the American people are able to govern themselves on this critical issue. The plaintiffs are asking the judges to impose their definition of marriage on every state in the country, regardless of how the people feel about them, and tell the hundreds of millions of Americans who have voted to support marriage as a relationship between a man and a woman that their perspective is forbidden by law.
This is about marriage, but it is about much more than that.
Stay tuned until next week and pray that truth wins.
[This post originally appeared on the Family Policy Institute of Washington blog.]