07/24/2012 08:40 pm ET Updated Feb 02, 2016

Supreme Timing: Why It's Better for the Supreme Court to Hear the DOMA Case Before the Prop 8 Case (Part 5)

This is the fourth piece in a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court. Read Part 1 here, Part 2 here, Part 3 here and Part 4 here.

In Part 4 of this series, I argued that a Supreme Court decision striking down the Defense of Marriage Act (DOMA) and providing married gay couples equal protection under federal laws would be a game changer for future marriage-equality litigation and could change the course of the Prop 8 trial itself, because it would eliminate the equivalence that currently exists between civil unions/domestic partnerships and marriage in some states.

With DOMA gone, civil unions that afford legal rights under state law will not afford federal rights, making them distinct from marriages and thus in violation of the Equal Protection Clause of the U.S. Constitution. A DOMA ruling, then, could set the ball rolling for many marriage victories in courts across the country, as state civil-unions laws could be challenged on equal-protection grounds. In today's piece, the final one in this series, I'll look at why the marriage-equality movement should care about the order in which the Supreme Court takes up LGBT cases, and I'll make the case for a course of action that makes our wins at the judiciary enduring and long-standing.

Why Timing Matters: The Lessons of Roe v. Wade

As I've mentioned before in this series, the exercise of court watching is an imperfect art at best. Justices have ideological leanings, but they can, and often do, surprise. What is clear is that even though the Court is meant to be above politics and separate from the whims of the daily news cycle, the Supreme Court does not exist in a vacuum. The Justices are attuned to the pulse of public opinion in the country, and while they clearly do not base their decisions on those opinions, they certainly do keep them in mind. As often as possible, the Court tries not to put itself in front of public opinion, although it sometimes must in order to end blatant injustices.

The textbook case of the Court getting ahead of public opinion is Roe v. Wade, the landmark 1973 decision that ruled that women have a 14th Amendment right to privacy under the Due Process Clause that extends to their decisions about whether or not to undergo an abortion. Roe is an almost 40-year-old decision, and it remains a hugely disruptive and divisive issue in American politics. Earlier this year, Justice Ruth Bader Ginsburg, one of the liberal members of the Supreme Court, spoke of Roe v. Wade as an example of the Supreme Court moving "too far too fast": "The court made a decision that made every abortion law in the country invalid, even the most liberal. ... Things might have turned out differently if the court had been more restrained."

There are many in the LGBT legal community who believe that the Prop 8 case could become the marriage-equality movement's Roe v. Wade. They argue that a Supreme Court ruling granting full federal marriage equality and striking down marriage bans in over 30 states would divide the country into pro-marriage-equality and anti-marriage-equality camps and energize the most fervent activists on both sides. I don't personally subscribe to this reasoning, primarily for the fact that public opinion on abortion in the United States has stayed relatively constant since Roe was decided, whereas public opinion on marriage equality is currently undergoing a remarkable and rapid shift in favor of equal rights.

Nevertheless, it seems likely that the current Supreme Court wouldn't want to get ahead of the country when it comes to marriage rights for gay and lesbian couples, especially since there are two significant pieces of data that contradict each other when it comes to gauging the state of the country's opinion on the matter. On the one hand are public-opinion polls, which continue to demonstrate, at both the federal and state levels, that attitudes toward marriage equality are shifting in favor of support, and are doing so at a rapid and accelerating pace. On the other hand, there is the fact that marriage equality has lost at the ballot box 32 times, most recently this May in North Carolina. Last month I wrote about an excellent piece by Equality Matters researcher Carlos Maza deconstructing the 32 states' talking points, but that fact no doubt looms large in the Justices' minds.

The truth is that the case brought by the American Foundation for Equal Rights against Prop 8 was brilliantly argued by Ted Olson and David Boies. The two made a strong, persuasive argument not just against Prop 8 but for why the U.S. Constitution should never allow a discriminatory law like Prop 8, one that denies citizens the right to personal liberty in love and marriage. That argument should be made over and over again, because it is dead-on, and it is how we will win full marriage equality in the future. But due to a quirk of timing, the DOMA cases and the Prop 8 case are up for consideration in the same time frame, and examining them together shows that a ruling on DOMA before Prop 8 fits into a more powerful and broader future for marriage equality in our country.

A Vision of the Future of Marriage Equality in the United States

I argued in Part 4 that the DOMA case should be decided before Prop 8 because it fundamentally changes the arguments to be made against California's marriage ban and other bans like it across the nation. Today, I want to take that a step farther and look past the two cases to the future of marriage equality in general.

Marriage equality currently stands at a tipping point in the United States, with polling beginning to shift to the majority in our favor, DOMA and Prop 8 at play before the Supreme Court, and marriage referenda in three states in November. While the legislative and judicial tracks are currently moving in parallel and do affect each other, I believe that the legislative track will eventually (and within the next few years) be exhausted, and further victories will have to come through the courts. A Supreme Court ruling on DOMA this year, rather than Prop 8, puts the marriage movement on more solid footing for the future.

Marriage equality is already the law or on its way in the states that are politically most disposed toward equal marriage rights (that is, the bluest states, with the exception being Iowa). The top tier of blue states that do not currently have marriage equality includes, in my mind, California, Maine, Maryland, Washington, Rhode Island, New Jersey, Hawaii, and Oregon. Of these states, Maine, Maryland, and Washington, of course, could have marriage equality by the end of the year through ballot measures, while California could see marriage return by Supreme Court intervention (or lack thereof) by the end of 2013.

New Jersey's legislature passed marriage equality earlier this year, and now has until 2014 to overcome Gov. Chris Christie's veto; a marriage-equality case is also working its way through the state's courts. Rhode Island is dragging its feet, but this November's elections could change the makeup of the overwhelmingly Democratic legislature and make marriage equality a real possibility, given that public opinion in the state is strongly supportive of equal rights. Litigation seeking marriage equality has been filed in Hawaii, and advocates in Oregon are considering a ballot initiative in the next few years. In short, these states are all moving toward marriage equality in one way or another, and within the next five to 10 years, it seems likely that they will provide equal marriage rights to all couples.

Contrast that with the many, many states in the U.S. where marriage equality is going nowhere. In these states, the legal system will be the only recourse for gay and lesbian couples, who will continue to face discrimination under the law. Even more importantly, many of these states have constitutional bans on marriage equality rather than statutory bans, which are a particularly high hurdle for marriage-equality supporters to overcome, because doing so requires a popular vote by the citizens themselves.

Once marriage equality has taken root legislatively (or perhaps by popular vote, or through the judiciary) in the blue states, marriage equality in the U.S. will be in a new stasis, and the future of the movement will lie in the federal courts. Even more significantly, if DOMA has been struck down before we reach this new equilibrium, gay and lesbian couples in states with marriage equality will be treated equally by the federal government, and the case for a fundamental right to marriage for all couples regardless of sexual orientation under the U.S. Constitution will be even stronger.

This vision of the future is incremental and, in a way, frustrating. But when viewed through this longer lens, it becomes clear, to me, at least, that the DOMA cases will have a huge impact on marriage equality in the U.S., whereas the Prop 8 case will be an important but less integral part of a natural progression. As a native Californian, I am as impatient as anyone for marriage equality to be returned to the Golden State, the state where I want to get married some day. But I am confident that we will be able to win marriage in California, either through a win in the Prop 8 case, or through a ballot initiative in 2014 or 2016, or through a new Prop 8 case filed after DOMA is struck down.

A Supreme Court ruling affirming a fundamental right to marriage equality will be most significant for those gay and lesbian couples living in states where waiting for public opinion to change in favor of marriage equality could take many years. Beating DOMA is central to laying the foundation for a future win before the high court that rules that, regardless of the state that a couple lives in, they should be free to marry and should be provided the same rights as all other Americans.

An End to "Separate but Equal"

In the end, notwithstanding the many intricacies and technicalities of legal procedure and Supreme Court predictions, the argument that the Court should decide DOMA before Prop 8 is a remarkably simple one. Despite the incredible gains made by marriage-equality advocates across the U.S., all these developments were, unfairly, only half-victories because of DOMA. Married couples in Massachusetts, New Hampshire, Vermont, Connecticut, Iowa, Washington, D.C., New York, and, yes, California will only be truly married once DOMA is no longer law and the federal government treats all married couples equally.

Because of this, a DOMA decision would have an unprecedented effect on marriage equality in the United States, and would pave the way for new legal victories in states from California to New Jersey. In striking down DOMA, the U.S. Supreme Court would return American marital law to the place it has been since the founding of our country, and would continue to allow the states to proceed on their own terms and at their own pace toward full equality. It would be an inherently conservative decision, it would be in keeping with the American tradition of judicial restraint, and it would be the right thing to do. And it would also lay the groundwork for Proposition 8 to become simply a thing of the past, another reminder of the outdated and un-American philosophy of "separate but equal."