Supreme Court To Rule Tomorrow on Prop 8 and DOMA: A Primer

The long road is almost over. After a legal journey that has gone on for many years, two landmark gay rights cases will be decided by the US Supreme Court tomorrow morning. Here’s a look at some possible outcomes, and what they’ll mean.

Proposition 8

California voters passed Proposition 8 in November 2008. The measure amended California’s constitution and banned same-sex marriage in response to a ruling from the California Supreme Court legalizing equal marriage in that state. A battle to have the measure overturned before state courts failed, and supporters of marriage equality recruited a legal dream team of Theodore Olson and David Boies to fight their cause in federal court. A district court held a full trial, after which the judge ruled that Proposition 8 violated the United States Constitution, and ordered that it no longer be enforced. Supporters of Proposition 8 appealed to the Ninth Circuit Court of Appeals when California’s state officials refused to defend it, but lost at the Ninth Circuit as well. That ruling was appealed to the Supreme Court, which heard arguments in March.

So what are the possible outcomes?

Uphold Proposition 8

In this scenario, the Supreme Court overrules the Ninth Circuit and the District Court, and says that the voters of California had a right to ban same-sex marriage. This would almost certainly mean that a measure repealing Prop. 8 will be placed on the ballot for 2014, and if current polling is any indicator, equal marriage supporters would extend their winning streak at the ballot box. However, in my opinion I think that the Supreme Court’s conservatives probably don’t have the five votes they need to make this happen.

Strike Down Proposition 8

There are three different ways that the Supreme Court could do this. The first would be a sweeping constitutional ruling that says that the Constitution demands that LGBT people must be treated the same as everyone else. In this scenario, every single state ban on same-sex marriage would get swept away, and marriage equality would be the law nationwide. This is highly unlikely, as the Supreme Court likes to take baby steps, and even some of the more progressive justices would be uneasy about such a huge gesture.

The next option would be the ‘separate is not equal’ scenario. This would leave intact same-sex marriage bans in states that provide no rights to same-sex couples, but would force marriage equality in any state that offers civil unions or domestic partnerships that give same-sex couples all the rights of marriage without calling it marriage. This outcome is probably unlikely as well, if only because it requires the Court to say that the states that offer same-sex couples some rights are somehow acting more objectionably than the states that offer nothing at all.

The third option is a California-only solution. There are a few different ways to do this, but the general idea is to say that based on the unique situation of how things were done in California, such a decision would strike down Proposition 8, but leave in place all other bans on same-sex marriage. Assuming that the Supreme Court actually rules on the merits, this is the most likely outcome.

Procedural Escapes

There are two ways that the Supreme Court can decide without actually deciding. In both of these situations, the Court gets to avoid making any ruling on the constitutionality of Prop. 8.

The first option here is for the Court to dismiss the case as improvidently granted (“DIG” it for short). This is the Court’s way of telling everyone that it was a dumb idea for them to agree to decide the case to begin with, and since nobody tells them what to do, they’re just going to change their minds and not decide the case. In such a situation, the Ninth Circuit’s decision striking down Prop. 8 stands, and after a brief delay lasting for a few weeks, marriages would resume in California. A lot of people, myself included, thought that this was the most likely outcome after hearing oral arguments. However, “DIG” orders are generally released quite quickly after oral arguments, so the sheer length of time that’s elapsed makes it unlikely, though not impossible, that the Court will go this route.

The second option is messier. The US Constitution sets very strict rules about who can bring a case to federal court (this is known as standing), and the Supreme Court enforces these rules very strictly. The general rule has generally been that sponsors of ballot initiatives don’t qualify. The Justices seemed fairly skeptical about whether supporters of Prop. 8 had standing at all. If they rule tomorrow, as I expect them to, that Prop. 8’s supporters don’t have standing, then we won’t get a decision on whether or not the measure is constitutional. In addition, the decision from the Ninth Circuit gets wiped out as well, but the decision from the District Court will stand. Things will probably get pretty messy, but most legal scholars agree that the final effect will be that marriages will resume in California, but without any precedent-setting decisions to help advance the cause elsewhere.


The other case being heard is a challenge to the Defense of Marriage Act (DOMA). This law was passed in 1996 when it looked like Hawaii was going to legalize same-sex marriage. DOMA does two things: it allows each state to decide whether or not it will recognize same-sex marriages performed in other states or abroad, and it also prohibits the federal government from recognizing any same-sex marriages at all. It’s incredibly important to note that the first provision is not being challenged, so whatever happens tomorrow, a same-sex marriage performed in Vermont is not going to get recognized in Alabama. The only issue under consideration is whether the federal government has the right to refuse to recognize same-sex marriages.

So what are the possibilities on this case?

Uphold DOMA

Under this scenario, the Supreme Court rules that there’s nothing wrong with DOMA. The federal government is allowed to discriminate against same-sex couples, even when they are legally married. I doubt that this will happen, as it simply didn’t sound like there were five justices who were inclined to uphold DOMA.

Overturn Section 3 of DOMA

Section 3 is the part of the law that’s been challenged. During oral arguments there were two different legal rationales that the Justices were kicking around. The first is that LGBT people are a group subject to discrimination, and are therefore entitled to certain legal protections. This is known as heightened scrutiny. The second is that the federal government has no business meddling with marriage, which is a state issue only. I fully expect the Supreme Court to overturn Section 3 of DOMA, but it’s anyone’s guess as to what rationale they will follow.

Procedural Escapes

Much like Proposition 8, there is an issue of standing here as well, as the Obama administration has refused to defend the law. House Republicans have stepped in instead, resulting in some concerns over whether anyone has standing to be in court on this matter. While few expect the Supreme Court to deny standing here, if they do, the plaintiff in the case will have her marriage recognized, but some other case will be required to wipe this law off the books.

My Predictions

Predicting what the Supreme Court will do is risky business at the best of time, and is generally a really good way to end up with egg on your face, but I’m going to give it a shot anyhow. If I’m wrong though, it’s not my fault!

Prop 8

This will be the final opinion the Court releases tomorrow morning. Chief Justice Roberts will write the majority opinion, which will state that supporters of Prop 8 lacked standing. This could be anywhere from a 5-4 to a 9-0 decision.


This will be the second last opinion the Court releases tomorrow morning. Justice Kennedy will write the majority opinion for himself and Justices Breyer, Ginsburg, Sotomayor, and Kagan. His opinion will state that Section 3 of DOMA violates the 10th Amendment of the US Constitution. There will probably be a concurring opinion written by a liberal justice agreeing with Kennedy, but also stating that DOMA violates the Equal Protection provisions of the 14th Amendment. Justice Scalia will write a blistering dissent, and will be joined by Justices Alito and Thomas. Chief Justice Roberts could go either way. The final vote count will either be 5-4 or 6-3, depending on which side the Chief Justice takes.

So there it is. All will be revealed tomorrow, and I’ll have an update and analysis once the Court issues its rulings.

Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds degrees in Political Science and Law.

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  • Matt

    Thank you for taking the time to write ths article. Really appreciate it. <3