By now, most people in America know the Supreme Court is hearing two enormous gay marriage cases this week. However, the court probably isn’t going to issue a single black-and-white ruling that’s either “pro” or “anti” gay marriage.
There are a number of possible outcomes in the two cases, which are separate but related.
One of those cases involves the defence of Marriage Act, a 1996 law that says the federal government doesn’t recognise same-sex marriages. The challenge was brought by a lesbian who had to pay $363,000 on her wife’s estate that a straight spouse wouldn’t have had to pay.
The other, thornier case involves Proposition 8, California’s voter-approved ban on gay marriage. Prop 8 passed in 2008 after the state’s highest court effectively legalized gay marriage in the Golden State.
Here’s how the court could weigh in on these cases:
- “50-state solution” — In the Prop 8 case, the Supreme Court could rule that gay marriage is a fundamental Constitutional right and that every state must issue licenses to same-sex couples. This ruling would effectively destroy DOMA as well.
- “Eight-state solution” — Also in the Prop 8 case, the Supreme Court could adopt the Obama administration’s middle-of-the road argument that would require the eight states that offer civil unions to gays to let them get married too. This argument sounds weird, but it would have the practical effect of not imposing marriage on a lot of red states that haven’t even taken the initial step of offering civil unions to gays.
- Narrow ruling on Prop 8 — The court could rule that Proposition 8 was illegal because it took away a marriage right that gay couples had already had. This ruling would let same-sex couples in the Golden State walk down the aisle, but it wouldn’t force any other states to allow gay marriage.
- A ruling striking down Prop 8 —This would be a crushing ruling for gay rights activists and would mean gay people couldn’t get married in California.
- The court “punts” on Prop 8 — The justices could ultimately decide not to weigh in on the issue at all. Since the state of California decided not to defend Prop 8 in court, a group of anti-gay marriage activists stepped up to argue the case for the law. But the high court could rule those activists don’t have “standing” to bring defend the law. Basically, that would be the court saying that the anti-gay marriage activists can’t show they’re “harmed” by same-sex marriage.
- With DOMA, the court could just strike it down —That would mean that the federal government would recognise same-sex marriage in the nine states where it’s already legal. In practical terms, gays could get the same federal tax breaks straight couples do, like not having to pay an estate tax.
- The Supreme Court could uphold DOMA — If the high court upholds DOMA, then the status quo of gay couples being denied federal benefits would continue. Congress could ultimately try to do away with the law but that might be a longshot in an age of partisan gridlock.
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