United States v. Gay Marriage: Step forward or strategic misfire?

Same-sex wedding ceremony

Craig Kyzar — Few to none were surprised when the United States Supreme Court finally agreed to review one of the many Defense of


Marriage Act (DOMA) cases put before it during last December’s docket selection conference. The real surprise came in the Court’s decision to double-up on the gay marriage issue with the hearing of a challenge to California’s Proposition 8: a matter with far greater potential to jumpstart the process of sweeping reform. Oddly, no sooner than oral arguments began last week did the Court show its first signs of buyer’s remorse in accepting the latter case at all.

As stated in a previous article, the Court seldom leaps far ahead of national sentiment, especially if it means the possibility of replacing existing legislation in a majority of states with a violently divisive new interpretation of law. That’s what makes this decision, and subsequent backtracking, all the more intriguing.

There are several schools of thought on the Court’s logic for accepting a case with such incendiary potential, including theories of a strategic gaming of the system by each side of the ideological aisle. Add to this the peculiar rapidity with which the Court accepted review of such a relatively young and unformed issue (by Supreme Court standards) and the ultimate result, once the Court hands down its ruling on these two cases in July, is almost assured to be as disappointing as it will be messy.

Regarding the DOMA matter, based on past history and hints revealed during oral arguments, it is possible, if not likely, that the Court will finally strike down this 1996 legislation as unconstitutional either on the grounds that it is discriminatory on its face or – to play it a bit more safely – that the scope of such federal legislation fundamentally impinges on marital and children’s issues historically left in the hands of state law.

Any constitutional analysis must always begin with the simple, yet often misunderstood, reality that the United States Constitution is an instrument not of empowerment, but of restriction. That is to say, any power not directly or implicitly afforded to the federal government by the language of the Constitution shall remain a power delegated to the states.

While the chosen reasoning for striking down DOMA may at first seem semantic, in practice it is anything but. Should the Court dodge the issue of discrimination in favor of a procedural revocation then it misses a tremendous opportunity to crack the armor of legal resistance to universal marriage rights. Should it embrace this reasoning, however, then the case could provide a heartening legal stride forward even though its scope falls far short of any ultimate hopes for national equality. That ambitious goal rests with the case challenging California’s Proposition 8, and that is also where things get most interesting.

The first question to consider in attempting the hazardous pastime of predicting Supreme Court rulings is exactly which four (at least) of the nine justices greenlit the case regarding Proposition 8 in the first place. While it is possible that the Court simply deemed this a review whose time had come, oral arguments brought to light the very real possibility that this case made the docket not at the urging of sympathetic justices but rather as a calculated gamble by their ideological opposites, forcing the issue before the Court while conservative influence on the bench still remains sufficiently high to allow the probability of victory.

If the latter is true, then it is possible that the hurried push by proponents to bring this case could backfire dramatically by providing the conservative base the ideal opportunity to address a hotbed topic while its strength in the Court still remains high and while a strong counter-movement still exists nationwide against absolute marital equality. Perhaps this is exactly why liberal-minded justices spent oral arguments rather obviously seeking an escape hatch. Pinned between a premature review brought by conservative counterparts and the possibility of a ruling that further divides the nation, perhaps the only legitimate option will be to punt the matter back to California’s Ninth Circuit on procedural grounds, leaving the lower courts to sort through the aftermath.

Of course, this is not to say that no good is likely to come from these rulings, however constrictive or expansive they may be. That such a fundamental rights issue still exists in 21^st century America is, in itself, strong evidence that a forward push was long overdue. Religious beliefs and righteous moralism aside, day by day, the public consciousness leans further toward an accepted belief that homosexuality is neither a “choice” nor a characteristic that can bear continued discrimination. And if recent history is any indicator, the dominant ideological position of our nation’s top Court seems poised to change similarly over the coming years.

A modest battle is likely to be won with the striking of DOMA, although it remains to be seen how much progressive ammunition the Court may provide with its decision. And while a ruling striking down Proposition 8 as unconstitutional is not entirely out of the question, its ramifications are likely far too unruly to undertake today. Indeed, it is much more likely that the Court’s majority will turn the case away for lack of legal standing, effectively (and quietly) reinstating the right to gay marriage in California while the war continues its way through the courts.

Perhaps this case symbolizes the last stand by a staunch few seeking the power to roll back progress, or maybe it is further evidence of an irrepressibly rising tide. Either way, we are dealing with a Court that specializes in frustration. As with every major shift in the ideological landscape, we may be in for a long journey… but every step forward is still a step closer to the tolerant nation we ultimately aspire to become.



About the Author

Craig Kyzar is an award-winning journalist and international attorney. After graduating from NYU Law School and enjoying eight years of legal practice in Manhattan, Craig is now heavily involved in nonprofit work dedicated to enhancing children’s literacy skills and connecting economically disadvantaged youth with a life-changing love of reading. When not frolicking in fiction and playing with poetry, Craig’s editorial columns and articles are regularly featured across several news outlets, providing uniquely provocative views on legal, political and humanitarian issues.