As I am writing this, the Supreme Court of the United States is preparing to hear arguments in the case of Hollingsworth v. Perry, the case arising from California’s Proposition 8. Proposition 8, approved by California voters, banned same-sex marriage in California.
This statute was challenged in the federal district court in San Francisco and was struck down. The district judge wrote a broad opinion in the case explaining why the voters of California could not ban same-sex unions. On appeal to the U.S. Court of Appeals for the Ninth Circuit, which includes California, the district court’s decision was affirmed, although on different, narrower grounds.
That decision, on appeal to the U.S. Supreme Court, is being argued this week. Interestingly, the case has brought together two lawyers whom one would not normally assume to be allies to argue that Proposition 8 is unconstitutional: David Boies and Ted Olson, who were on opposing sides in Bush v. Gore. That Boies and Olson are working together on the appeal to the Supreme Court demonstrates that the issue of same-sex marriage transcends conventional political boundaries.
Over the past months, the media has been filled with analyses of the case, of the ways in which various Supreme Court judges might vote in the case, and the likely impact possible decisions would have on the law in all of the 50 states. The Obama administration has weighed in on the case and the president has stated his support for same-sex marriage.
Some commentators have even said that they regard this case to be the 21st century equivalent of the 1954 Supreme Court decision in Brown v. Board of Education. I think that there can be little question that the decision in this case, whatever it may be, will have an effect on millions of gay and lesbian Americans and on American society generally.
It is hard to determine what the Supreme Court will actually do in the case. The court is famous for hearing controversial cases and then avoiding issuing substantive opinions based on technical legal grounds, particularly the doctrine of “standing.” The court might well do this in Hollingsworth v. Perry. At the other extreme, the court could determine that there is a federal constitutional right to marriage, regardless of the gender of the individuals being married.
I think it is most likely that the court will do neither of these but, instead, issue a carefully crafted ruling applicable to California and Proposition 8 that may well leave the broader issue of the federal constitutional right to marriage undecided. And the court’s decision may also leave open the question of what other states can do on the subject.
Whatever the decision may be, I think that it is unlikely that it will settle either all of the legal or political issues surrounding same-sex marriage. Perhaps, in this way, the comparison to Brown v. Board of Education is appropriate. Even though the Supreme Court issued its decision in 1954, a decision that decisively struck down racial segregation in schools, it took decades and fundamental changes in society before school segregation was fully eradicated in the U.S. (if, in fact, it has been totally eradicated even today). It may well be that the issue of same-sex marriage will also require time and social changes to become fully acceptable.