06/26/2012 03:36 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 3)

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

In Part 2 of this series, I made the argument that the conservative majority on the Supreme Court would likely feel more comfortable striking down DOMA for its perversion of hundreds of years of state supremacy in marriage laws than it would striking down Prop 8 because it took rights away from citizens who already enjoyed them. In today's post, I'll extend these differences to look at the distinct constitutional implications of striking down DOMA, a federal statue that was passed by Congress, and Prop 8, a constitutional amendment enacted by a popular vote of the people of California.

DOMA and the Upending of the Status Quo of American Marital Law

Because DOMA is a federal law, a Supreme Court decision striking it down would not be particularly momentous on a procedural level: it is the Court's prerogative to have the final say on the constitutionality of federal statutes. Congress is, of course, a representative body that is supposed to enact the will of the populace, and when Congress goes too far and runs afoul of the U.S. Constitution, it is the responsibility of the Supreme Court to rein in the legislative branch.

As I wrote in my previous post, marital law in the United States has historically been an area of state law and not federal law: DOMA represented the first time that the federal government instated a definition of marriage that superseded state marriage definitions. In reviewing DOMA, then, the Supreme Court's conservative justices could very well see themselves as restoring a status quo to a matter which was, essentially, forcibly made a federal issue by Congress.

The status quo argument, in fact, is one which has been brought up at both the district and appellate court levels in the DOMA cases, albeit by the pro-DOMA Bipartisan Legal Advisory Group (BLAG), which is defending the law on behalf of the House of Representatives. Essentially, BLAG has argued that DOMA (which was passed in a kind of panic by social conservatives after a Hawaii Supreme Court decision that could have paved the way to marriage equality in the state) maintained the 'status quo' of heterosexual marriage in the U.S. to allow the states to be 'laboratories of democracy' and explore providing marriage rights to gay couples.

Several district courts, as well as the First Circuit Court of Appeals, have rejected this argument when it has been made by BLAG, but the concept of the status quo is still significant for DOMA's fate at the Supreme Court, albeit as an argument against the law, rather than for it. DOMA radically changed the status quo for American marital law (at least for gay and lesbian couples), and the Supreme Court may very well look favorably upon restoring the traditional federalism of state marriage rights that existed before DOMA was enacted.

Because of this, a Supreme Court decision striking down DOMA would be, perhaps counter-intuitively, a conservative one, not in the sense that it fits into a conservative political agenda (it doesn't), but in the sense that it expresses a world-view of maintaining the traditional separation of powers and responsibilities afforded to the states and to the federal government.

Consider a counter-factual. A Supreme Court decision upholding DOMA (and thereby affirming Congress's right to intrude federally into the realm of marriage law) would create precedent for a future, pro-equality Congress to enact a law similar to DOMA in its scope but with the opposite effect which would establish marriage equality federally, even in those states in which public opinion (and political demographics) would be opposed to providing such rights to gay couples. It seems hard to imagine the current Supreme Court handing down such a decision, and opening up the door to further federal intervention in the historically state-decided area of marital law.

On the other hand, given their views on states' rights, the conservatives on the Court (and certainly Justice Kennedy) would be much more likely to look favorably upon the argument that striking down DOMA would truly allow the states to experiment in a way that they cannot fully do while DOMA is the law. This argument could appeal not only to Justice Kennedy, but perhaps also to Justice Roberts, who has in the past professed a desire to avoid split-court decisions and who is clearly invested in the public's opinion of the Court. A 6-3 decision striking DOMA down would affirm that it is the states, and not the federal government, that has the final say on marriage law in the United States, and would return to states the power to provide full equality to couples regardless of their sexual orientation.

Prop 8: Why the Best Course of Action for the Supreme Court Is Declining to Review the Case

A Supreme Court ruling upholding the Ninth Circuit's invalidation of Prop 8 would certainly have national implications that would take American marital law away from its current status quo. As I wrote in Part 2, the Ninth Circuit declined to make the same broad argument that district court Judge Walker did in his ruling that Prop 8 violated gay and lesbian couples' fundamental right to marry under the U.S. Constitution. The Ninth Circuit left that issue untouched, while ruling only that Prop 8 was unconstitutional because a state's citizens cannot use a popular vote to take away rights that have already been bestowed upon a class of citizens. In its ruling, the court specifically limited it analysis to California only.

If the Supreme Court were to maintain the Ninth Circuit's narrow opinion, even if it were to specifically limit its decision to California, such a decision could be cited in marriage equality cases across the country, and even though it would not be a controlling precedent, it would still stand as the opinion of the highest court in the country. If the Supremes declined to reconsider the Prop 8 case, on the other hand, the Ninth Circuit's decision would stand, the direct impact of the ruling would affect California only, and while the Ninth Circuit's opinion could be cited with some authority (but not as precedent) in the states under its jurisdiction, any citation outside the Ninth Circuit would be merely advisory. In short, a Supreme Court ruling that does nothing but affirm the Ninth Circuit's ruling is still more far-reaching than a refusal on the high court's behalf to even hear the case.

The other two possibilities inherent in Supreme Court review would likely be equally unpalatable to a majority of the justices on the court. If the Court were to revert to Walker's conclusions, it would strike down marriage equality bans that are on the books in more than 30 states. When the American Foundation for Equal Rights (AFER) filed the Prop 8 case on behalf of two California same-sex couples, the original intent of the lawsuit was to secure this kind of broad, sweeping decision from the Supreme Court, a decision that would be in the tradition of Loving v. Virginia, the landmark 1967 decision that ruled interracial marriage bans unconstitutional.

There are significant differences, however, between the Loving case and the Prop 8 case, perhaps the most important one being that, when Loving was decided, only 16 states had anti-miscegenation laws, whereas today a large majority of states still outlaws marriage equality. A Supreme Court decision striking down all of these laws would be a dramatic one indeed.

On the other hand, it would be equally as dramatic for the Supreme Court to reverse both lower courts and uphold Prop 8, since such a ruling would affect all future lower court decisions on marriage equality, precluding them from using the brilliant arguments made by Ted Olson and David Boies in the Prop 8 case. Such a decision would buck the clear trend of public opinion towards full marriage rights for all couples, and put the Court in an uncomfortable position considering changing views on LGBT rights.

Finally, an explicit decision by the Supreme Court upholding the Ninth Circuit's decision (or Judge Walker's) would involve overturning the popular vote of a state's electorate on a constitutional amendment. Not surprisingly, judges are extremely wary about taking action against such directly democratic decisions. This is not to say that popular votes on such issues are inherently correct; on the contrary, the rights of the minority should never be up to a popular, majority vote, since doing so almost always results in those rights being denied.

Although it is the role of the judiciary to protect the rights of the minority against the will of the majority (all spurious accusations of 'activist judges' aside), the Supreme Court would no doubt express caution in striking down a popular vote by the electorate. Because of this and the other possible outcomes of Prop 8 review I mentioned above, it seems like any action the Court could take on the case, other than declining to review it, would create unnecessary complications.

The easiest, and most cautious, path available to the Supreme Court when it come to the Prop 8 case would be to deny any review of the Ninth Circuit's decision. The appellate decision would stand, but because the Ninth Circuit chose to restrict the effects of its ruling to California only, no precedent would be set in any of the other states. No other marriage bans would be struck down, and the Court would not have expressed its support of divisive constitutional amendments like Prop 8. Instead, Prop 8 would remain a California issue only, and a future marriage equality case would be needed to seek the fundamental right to marriage that AFER sought to affirm. Of course, the Court is under no obligation to take such a course of action, but they would certainly be wise to do so.

Admittedly, it is frustrating for the marriage equality movement for the Prop 8 case to be limited to California, rather than setting a wider precedent. Still, given the facts on the ground, it is probably not time to ask the Supreme Court, especially considering this Court's conservative majority, to recognize such a right. It is, however, time to seek the striking down of DOMA, which discriminates daily against gay couples that are duly married under their states' laws.

Perhaps more significantly, a victory in the DOMA case would set an important precedent that would fundamentally alter the future of marriage equality litigation in the U.S., including the Prop 8 case.

In Part 4 of this series, I will make my final, most important argument: that a win against DOMA would have hitherto under-appreciated effects that would greatly help the fight for full federal marriage equality in the future.

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Jacob Combs is a contributor and writer at