The justices’ questions, at least on Tuesday, were sharp and often acerbic. But, as regular court observers warn, it is a fool’s errand to try to predict how the court will rule from the tone and direction of the questioning. Decisions in both cases are expected in late June.
Two outcomes seem highly unlikely: The court could rule that same-sex marriage is a constitutionally protected equal right, making such unions legal in all 50 states (they’re already legal in nine plus the District of Columbia). Or the court could finesse the issue entirely by ruling that, in both cases, the parties — the House Republican leadership, regarding DOMA — do not have the legal standing to challenge those laws.
This would pitch the question of legalizing same-sex unions back into the political arena of state legislatures and ballot initiatives, bringing no clarity to issues such as whether a state where gay marriage is illegal must recognize such unions and their associated rights from states where it’s legal.
Among the other possible outcomes: The justices could strike down Proposition 8 in California. Or, as the Associated Press explained, they could go for the “nine-state solution,” ruling that states that already treat gay and straight couples nearly the same through civil unions or domestic partnerships can’t deny the “marriage” label. That applies to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. (Colorado Gov. John Hickenlooper, a Democrat, signed his state’s civil-unions law Thursday.) This ruling would not implicate marriage bans in other states and would leave open the question of whether states could deprive gay couples of any rights at all.
Nine other states allow same-sex marriages: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington, plus the District of Columbia.
The Obama administration has refused to defend DOMA. Former President Bill Clinton, who signed the act, now says he’s a believer in same-sex marriage, as is once and perhaps future presidential candidate Hillary Rodham Clinton, who came out fully in favor of it last week.
Americans, including a number of high-ranking Republicans, as well as younger rank-and-file GOPers, have done a remarkable turnaround on gay marriage. A Washington Post-ABC News poll shows that nearly 60 percent of the public supports gay marriage; support reaches 81 percent among adults under age 30. The findings are consistent with other recent polls.
The Supreme Court can accelerate or delay the process, but widespread political and public acceptance of same-sex marriage now appears, for better or worse, to be inevitable.