Supreme Countdown

Three Ways The High Court Might Rule On Your Marriage Equality

When the U.S. Supreme Court struck down bans on interracial marriage in Loving v. Virginia in 1967, reality changed overnight for thousands of couples. Suddenly, Mildred and Richard Loving and their children could live in their home state of Virginia. They could receive the same benefits and rights as other married couples. And other interracial couples could apply for marriage licenses without fear of rejection or being arrested in the middle of the night. Their marriages would enjoy the same societal stamp of approval as all others.

Within ten years of the Loving decision, the number of interracial couples with marriage licenses more than doubled –from 51,000 in the 1960 census and 65,000 in 1970 to 121,000 by 1980 and 213,000 by 1990.

The Supreme Court’s ruling this month in two high-profile marriage cases involving same-sex couples could change legal and social landscape for the LGBT community, too.

Or not.

Loving was delivered by a unanimous court; nobody thinks there will be a unanimous decision in Hollingsworth v. Perry (the Prop 8 case) or U.S. v. Windsor (the Defense of Marriage Act case).

Loving struck down laws in all 16 states which barred marriage for interracial couples; while some people believe Perry might do the same for laws banning same-sex couples from marriage, most believe it will strike down only the ban in California and perhaps six other states. Windsor might strike down DOMA nationwide, but activists say there will still be limits on couples with marriage licenses who live in a non-marriage equality state.

So, how far might these decisions go?

Here are three possible scenarios to watch for:

1. Both Prop 8 and DOMA are upheld. Nobody is expecting this, but nobody really expected the Supreme Court to uphold sodomy laws when it did in 1986 and nobody expected the court to uphold the Affordable Care Act (aka Obamacare) last year. To reach this result, a majority of justices must vote together twice: first, to allow that each case’s procedural questions are cleared up, and again to “reverse” the lower court judgments.

2. Both Prop 8 and DOMA are struck down. This is what most experts expect, but there many possibilities for how this could happen and play out. For Prop 8, the court could strike down the ban in California, strike it down in California and other six states (Colorado, Hawaii, Illinois, Nevada, New Jersey, and Oregon) whose bans are similar to California’s, or strike down such bans in all states. It could also reach one of the limited results by ruling against the Yes on 8 proponents on procedural matters. For DOMA, the court could rule on the merits of law’s constitutionality, or it could find some procedural issue that precludes a ruling on merits. That would allow the Second Circuit decision against DOMA to stand. But it’s hard to imagine the court would be comfortable with allowing DOMA to be enforced in some parts and not others. It’s the Supreme Court’s job, after all, to step in where there’s a conflict among the circuits and states.

3. Prop 8 is struck, but DOMA stalls. Again, it’s hard to imagine the court would be comfortable with allowing a federal law, such as DOMA, to remain in force in some circuits but not others. So the justices could opt to make no ruling with regard to Windsor and take up the DOMA challenge through one of the other DOMA appeals awaiting action in its in-box. The court is not likely to look for a better case regarding statewide bans, such as Prop 8, so one way or another, the court is almost certain to take meaningful action on the Prop 8 case. And there are several ways Prop 8 could bite the dust –either by dismissal on procedural grounds or by the court affirming one of two lower court decisions.

Bottom line? Whatever the Supreme Court does, it will do it sometime between Monday, June 10, and Monday, June 24, the last day of the session. And many believe the results could represent among the most important civil rights decisions in Supreme Court history. They most certainly will be among the most important in LGBT history.

“I’m hopeful the Supreme Court will do the right thing,” Evan Wolfson, head of the national Freedom to Marry, told Queerty. “And clearly, the right answer under the constitution, and for the good of same-sex couples and our country, is to end the denial of freedom to marry nationwide and assure that all marriages are respected equally.”

Stay tuned.

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at


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  • hyhybt

    All right. Until recently, nobody was reporting dates more specific than “by the end of June.” Then I was seeing June 27th in several places. Now the last day is supposed to be the 24th. What’s going on here?

  • 1EqualityUSA

    The Supreme Court needs to rule on this, so that our Country can start healing and getting on with our lives. The law suits and constant legal wrangling is dreary. Equality must be upheld. Win or lose, every time a community votes on the rights of other, less popular, Americans, it is demoralizing. Our rights should not be put up to popular vote.

  • Homophile


    The court issues ruling on Mondays, so expect a ruling on either June 10th, 17th, or 24th.

  • vklortho

    So what are the 8 other states besides California that could have their ban struck down?

  • JakeAndrew

    What’s the Affirmative Care Act?

  • vklortho

    @JakeAndrew: They probably meant the Affordable Care Act(i.e. Obamacare).

  • JakeAndrew

    @vklortho: I see. But that was upheld last year.

  • Billysees

    @1EqualityUSA: No. 2

    Your comment is the best.

    Especially, ” Our rights should not be put up to popular vote. “

  • erikwm

    @hyhybt: The court issues ruling on Mondays and Thursdays. The marriage cases will likely be the last opinions issued. That means either Monday, June 24th or Thursday, June 27th.

    Last year, the court’s ruling on the Affordable Care Act (aka Obamacare) was held until the last day of the session — Thursday, June 28th.

    There are still major rulings on voting rights, affirmative action, and gene patents that will likely be the newsmakers over the next couple weeks. The marriage cases will likely go last.

  • Geoff B

    Obviously, the optimal outcome is same sex marriage is legalized everywhere. Don’t hold your breath. Realistically, the best outcome will go like this: Kennedy won’t want to be remembered as the deciding vote that lands him on the wrong side of history. Prop 8, IMO, is a foregone conclusion. It will be struck down. DOMA, they will find if nothing else, flies in the face of the “full faith and credit clause” of the Constitution. They may also cite “seperate but equal” is unconstitutional meaning the 6 civil union states (NJ, Oregon, Hawaii, Illinois, Nevada and Colorado) will go marriage, and finally the states that don’t allow SSM will be made to recognize marriages granted in states that do. At least it’s what I’m allowing myself to hope for.

  • Cam

    Or they will be cowards, and say that the case wasn’t against the entirety of DOMA but only against one part of it, and they will strike down that one part and leave the rest intact.

    Never be surprised at the cowardice of present day politicians or judges.

  • Wayne

    Perhaps if we are not “granted” our Civil Rights, we should become uncivil, Right?

  • 1EqualityUSA

    Wayne, and stop paying taxes until we are seen as equal. We could all band together and refuse to pay taxes until we are equal.

  • chefshep65

    just a few weeks away, and hoping that i finally can get married for real to the love of my life!

  • Charli Girl

    Oops..thought we were already supposed to do that when we’re approached by homophobes …

  • Elloreigh

    They missed a possibility – Prop 8 upheld and DOMA found unconstitutional. The court isn’t going to invite controversy by endangering 30 state amendments enacted by voters. It will either uphold Prop 8, or punt in on the standing technicality, limiting it to just California. It’s frankly a toss-up, but I’m slightly inclined to think they’ll uphold Prop 8.

    DOMA Section 3 being found unconstitutional seems like a no-brainer. But the reason will be federalism, not equal protection. The justices aren’t going to be willing to declare orientation a suspect class.

    Give ’em another 15-20 years, maybe they’ll come around.

  • Elloreigh

    @Geoff B: Well, you’re hopes are unfounded. Prop 8 is a lot more iffy than DOMA, because the court won’t want to be seen as acting against the will of “the people” as expressed through a voter initiative.

    You’re completely wrong about DOMA. The DOMA case is a challenge to Section 3, which is the federal definition of marriage. This stuff you’re talking about (full faith and credit, civil unions states being required to offer marriage recognition, states being required to recognize the marriages of other states)- that’s all connected to Section 2, not Section 3. The court isn’t going to take up any of that.

    They’re also not likely to rule on the equal protection claims, so don’t expect to hear/read anything about “separate but equal” in the majority opinion.

    We will not see any kind of unified ruling in these cases. Expect to see several individual justice writing opinions that concur in part and dissent in part from the majority opinion, more so than usual. That kind of division within the court will provide us with a narrow ruling, not the kind of broad ruling that sweeps away all the restrictions and promises equality.

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