The U.S. Supreme Court is expected to issue a decision in two cases about marriage in the next week or so. There is real irony in this since both cases involve challenges to laws meant to curb abuse of power by judges.
In the early 1990s, a couple of judges on the Hawaii Supreme Court suggested that their state’s constitution could be read to require the government to redefine marriage to include same-sex couples. In response, other states began to enact legislation to specify that they would not be forced to recognize same-sex marriages contracted in other states. Congress, too, enacted the Defense of Marriage Act which had two parts related to this concern. The first part made clear that states need not recognize same-sex marriages from other states. The second part stated what would seem to be obvious–that when Congress used terms like “marriage” or “spouse” in federal law, they were referring only to what marriage had always meant in American law, the union of a husband and wife.
The most well-known of the cases now pending with the Supreme Court is a challenge to California’s marriage amendment, Proposition 8. When the California Legislature refused to act to prevent recognition of out-of-state same-sex marriages in the late 1990s, citizens of California adopted an initiative measure, Proposition 22, that did so. When that law was struck down by the California Supreme Court, invoking the state constitution, citizens of California corrected the court’s misinterpretation by amending the state constitution to define marriage (Proposition 8). Opponents of Proposition 8 then brought suit in federal court and that case has now come to the Supreme Court.
The other case is a challenge to the second part of DOMA. After the Obama Administration made clear that it would not vigorously defend this part of federal law, a slew of lawsuits ensued, one of which has reached the Supreme Court.
Although the cases are separate, they have a lot of common features and arguments about them were heard by the Court on subsequent days. Obviously, both are federal constitutional challenges to laws that define marriage as a male-female union. Both arose from concerns that courts would impose a redefinition of marriage on the state. Both cases also involve some egregious bad behavior by the attorneys legally responsible to defend the challenged laws
In fact, in both cases, the government attorneys have taken the position that the marriage law of California and the United States are unconstitutional. More precisely, that the U.S. Constitution requires the laws to change to facilitate creation of same-sex marriages. The U.S. Department of Justice not only refused to defend DOMA, it is now arguing against it and injected itself into the argument over California’s Proposition 8.
There is, of course, all kinds of speculation about what the Court will decide in these cases. The bottom line question it has to answer is whether the Constitution requires redefining marriage.
If one looks at the text or any reasonable reading of previous interpretations of the Constitution, the answer to that question should be simple. Laws about marriage are to be enacted through the normal political process, not created by judges.
There is good reason to believe the Court will respect the constitution’s assignment of powers and allow the political process to continue without judicial oversight.
The failure of the governor and attorney general of California and of the U.S. Department of Justice to defend the marriage laws challenged in these cases, might result in a more technical decision by the Court dismissing the challenges or the appeals of earlier decisions (since our legal system requires opposing sides in a lawsuit, not collusion between advocates of one position and their allies in government).
The Court could also act outside of its constitutional role and mandate redefining marriage in California and/or all the states and require federal law to be changed to facilitate recognition of same-sex marriages.
There are all kinds of variations on what the justices could do specifically, but these basic options–respect the process, legislate or punt–provide the most likely scenarios.
It is not hard to see what is at stake in the Courts deliberations. Their decisions will impact such matters as whether the law can recognize the truth that marriage is about more than adult desires and implicates children’s entitlement to a married mother and father.
The decision could also set precedent on the roles of the various branches of government. It affects the foundational question of whether the constitution will allow self-government or whether executive or judicial officials can circumvent laws enacted through the political process.
With these momentous issues on the line, we all have a stake in the Court’s decision in the marriage cases.