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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