Three Ways The High Court Might Rule On Your Marriage Equality

With the Supreme Court expected to rule tomorrow, we take a look at how the justices might decide.

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 Wednesday June 25. 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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  • AxelDC

    The most likely outcome:

    1) The court will punt on Prop 8, declaring that NOM does not have jurisdiction. This keeps Judge Walker’s decision intact, ending Prop 8 and allowing CA to issue marriage licenses again. This will have no broader implications than California, but provides marriage equality to 1/6 of the nation in a stroke.

    2) DOMA Section 2 is out of question. The Court does not want to force Utah and Alabama to issue marriage licenses, so it will not address state recognition of out of state marriages, even if a couple moves from one part of the country to another.

    3) DOMA Section 3, which is the crux of the Windsor case, will be struck down, forcing the Federal government to treat gay married couples in states that grant gay marriages as equals. The Windsor case was a Federal tax case, which is the biggest impact of DOMA. Married couples will now be able to file join Federal taxes and be exempt from inheritance taxes between each other. It will also mean the Federal government will grant spousal benefits for Federal employees and for entitlements like SS benefits and survivor benefits. It especially means that the State Department has to recognize marriages in immigration cases, a major problem in the immigration reform battle.

    This would be a big victory, but incomplete. Gay couples in most of the country would be out of luck, and the question of marriage portability from Maryland to Virginia or Iowa to Ohio would remain outstanding. That will probably have to come from a future case to be decided in the next few years.

  • daniwitz13

    Is there a reading impediment in Gays? Loving v. Virginia was CLEARLY between a Male and Female. It is discrimination against a RACE. In that ruling, the Justices said that this Marriage of a Male and Female is “fundamental to our existence and survival”. How can anyone not interpret that to mean, Marriage between a Male and Female is fundamental to our and all existence, and is the only Formula for survival. No way can Homosexuality do this. Where are your logic and intelligence. ALL other ‘things’ are piddly small stuff compared to the Life and breath of Mankind. Are you peddling tax deductions and mere Orientations with the Making of Mankind and Civilization? Where are your sensibilities? You prostitute yourselves to an aberrance in Nature. Is Homosexuality up to the task of furthering Mankind, its existence and survival. You should know the answer to that one. Pity.

  • Homophile


    You’re a big silly.

  • AxelDC


    Is there a reading impediment in homophobes? Lawrence v. Texas (2003) CLEARLY stated that the state could not discriminate against gays without demonstrating a essential state need. Combine that with the Loving Case you invoked and you quickly come up with the formula:

    A) Marriage is a fundamental right
    B) The state cannot deny gays fundamental rights.

    If you want to make reproduction a critical criteria for marriage, than post-menopausal women would be banned from marriage, as they are no more capable of producing babies than gay men. You could also stipulate that all infertile marriages have an expiration, as you seem to think that children are the only reason to get married.

    The rest of your post devolves into the incoherent rantings of a manic street preacher, which leads me to ask the question: is your life so empty you have nothing better to do than troll gay websites? Perhaps you are so antigay because you cannot get anyone to take your own virginity.

  • Spike

    It’s so cute seeing Queerty stray away from posts that involve pics of guys in underwear and into the deep end of the pool, so to speak, with regard to SCOTUS decisions.

    With that said, tomorrows decisions will be underwhelming and anti-climatic. Prop 8 will be punted back to the 9th Circuit Court ruling. Yea, marriage equality returns to Calif., which scares the SHIT out of the conservatives, and DOMA will be some hybrid decision that will leave it up to the states, for the time being.

    Curious that Queerty has not touched on the other HUGE ruling expected, the one that involves Texas and affirmative action.

  • Homophile


    “Curious that Queerty has not touched on the other HUGE ruling expected, the one that involves Texas and affirmative action.”

    What do you find so curious about it?

  • AxelDC

    @Spike: What does Fisher v. UTx have to do with the gay community?

  • Spike

    @AxelDC: Gosh, you are right, I forgot, all gays and lesbians are white, college educated and affluent, there is no way an affirmative action decision by the SCOTUS could involve or effect any of them.

    Thank you for reminding me of that minor fact. Silly me, thinking there are gays/lesbian, youth in particular, who come from the inner cities, foster familes, ect., whom have ever or could ever benefit from educational opportunities directly related to affirmative action.

    BTW, care to share what Ivy League college/law school did you attended, oh, and how are the Hamptons this time of year? Sharing a house with Addelson, Laimer andand Preston again this summer?

  • Thomas

    @Spike Well said! I was just about to remind @AxelDC of the same thing. If that person is from DC it’s even worse that s/he could be so ignorant to the diversity within the gay community. Washington DC has a very robust and active and diverse gay community representing all nationalities and racial backgrounds.

  • stvrsnbrgr

    Hey Queerty – why are you completely IGNORING the OTHER other HUGE case before the Supremes: the Voting Rights Act?! Don’t teh gays VOTE?!

    Really guys? Really?! We have @daniwitz13 riding in on his Jesus horse up there in #2 spewing nonsense. Switch to decaf, nitwitz. In the next week or so, SCOTUS is going to hand down decisions on Prop 8 and DOMA that will be either Good, Great or FAAAAABulous. So, of course a HISSY FIT breaks out about all the other very important cases before the Court right now and who is concerned about what…

    C’mon Irenes – this is not the last pair of 28W leather Bermuda shorts at the Barneys sale, OK? There’s plenty of landmark SCOTUS decisions sliding down the bar to keep us all happy – or sad or somewhere in between – for the whole summer. And then the Andrew Christian year-end sale ads will have us all in a trance once more. Right now, though, SF and NY Pride are only a week away. And haven’t we all got 5 more lbs to lose, botox and spraytan appointments to keep, and some blue cheese olives to stuff? Run along.

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