It is poetic that San Francisco Pride Parade will be on the last Sunday in June, just days after the United States Supreme Court makes the last decisions of its term. Our pride will be triumphant or tragic depending on whether a majority of the Supreme Court (SCOTUS) has evolved on equality.
Here's what SCOTUS may do on two same-sex marriage cases. The California Proposition 8 challenge filed by Ted Olson, David Boies and the American Foundation for Equal Rights on behalf of two California couples is Hollingsworth v. Perry and the federal Defense of Marriage Act, or DOMA, case is called United States v. Windsor.
1. SCOTUS reaches the merits of Proposition 8's constitutionality and throws it out, technically affirming the Ninth Circuit decision invalidating California's measure. Possible but unlikely is a SCOTUS decision holding that all state bans on same-sex marriage are unconstitutional or that states with civil union and domestic partnership laws must require full recognition for marriage rights for same-sex couples -- legalizing marriage equality in Colorado, Illinois, Minnesota, Nevada, New Jersey, and Oregon, and of course restoring it here in California.
2. SCOTUS dismisses the case, leaving the Ninth Circuit's ruling that Prop 8 is unconstitutional as the final decision. This is called a "DIG" (as in "Dismissed as Improvidently Granted") if 5 or more justices agree that the petition for certiorari (Supreme Court review) should never have been granted. DIGs are rare but Justices Kennedy, Breyer and Sotomayor all raised the possibility during oral arguments in March. Again, the Ninth Circuit ruling on Prop 8 stands.
3. SCOTUS holds that Prop 8 backers lacked standing under federal law to appeal the U.S. District Court's decision. This would vacate the Ninth Circuit opinion, leaving U.S. District Court Judge Vaughn Walker's ruling that Prop 8 is unconstitutional as the final, binding decision. Prop 8 is held unconstitutional in this scenario, but parties hostile to marriage equality might seek to litigate over whether the District Court ruling applies statewide.
4. SCOTUS reverses the Ninth Circuit and upholds Proposition 8 as valid under the U.S. Constitution's equal protection guarantees. This loss for marriage equality would send us immediately to the ballot to repeal Proposition 8 by California voters.
5. DOMA is repealed, opening up federal benefits to same sex couple in states where marriage equality is legal and granting relief to same sex spouses denied equal protection under over 1,000 laws discriminating in policies from taxes to immigration.
6. DOMA is upheld and we retain the status quo -- returning to the ballot box to push candidates who will repeal it.
We saw with the Fisher (affirmative action) and Shelby (voting rights) decisions that a narrow majority on the Supreme Court has no qualms about limiting civil rights and defers greatly to states rights. This might portend a more limited ruling, affirming California's Prop 8 reversal but letting other states pass their own laws.
The worry of course is that a setback for marriage is not just a slap in the face to loving LGBT families but a setback for employment and housing anti-discrimination measures. Considering that over 29 states still allow employers to fire people for being gay, this concern is deep. Remember, the theory behind acting on military and marriage discrimination was that if we could crack those two most conservative institutions then we could open up all venues to equality. It was by no means a unanimous view but it was the theory behind the prioritizing.
Now that we've come tantalizingly close to equality in the military and marriage arenas, it would be unacceptable to take an adverse or incremental Supreme Court ruling as anything but a step on the longer march to equality. No matter what they do, we must push forward with a federal equality agenda including ENDA and urge President Obama to act if the GOP House refuses -- just as he did on climate change and gun safety -- through executive orders while we fight at the ballot box.
No matter what a handful of Justices say or do, love makes a family and we are all equal under the law. Which brings us back to the Sunday San Francisco Pride Parade. I'll be there with my family https://twitter.com/NancyPelosi/status/349693623744462851, joining our community in marching toward "a more perfect union." SCOTUS saved the most dramatic decisions for last -- let's hope they're also the best.