AKA: Will the US Supreme Court vote for LGBT Rights?

The other day, I was asking friends what they expected from the US Supreme Court as they issue their decisions regarding the two same-sex marriage cases before them. From than a few said something to the affect of “give us our rights.” I was explaining that I don’t see the role of the Court as “granting rights,” but this merely irritated most people, and I was accused of intellectualizing an emotional issue. Truly, marriage equality is a charged and emotional issue. Issues get to be like that with people who see it one way or another, and as this issue impacts the real lives of gay, lesbian, bi, and trans persons, there is no way for it not to be emotional. But that said, the reality is that the Court doesn’t grant rights. The court may rule that a law is unconstitutional, and thereby remove the law which was denying people rights. Laws create and limit rights. Courts determine if those laws are constitutional or not, and the US Supreme Court decides if lower courts have made correct or incorrect decision regarding the constitutionality of a law.This is not a matter of semantics. It is an integral part of our democracy where the legislative branch makes laws, the executive branch enforces the laws, and the judicial branch determines the constitutionality of the laws and their enforcement.

The idea of “Activist Judges” is most often thrown around by those who feel the Court hasn’t ruled in the way- usually conservative- that that political party is expecting. But it would be wrong to think that political activism only happens when a ruling is understood as being more progressive. No- judicial activism can happen in either direction whenever a judge places her or his personal and political objectives before the law and the Constitution.

People who are being treated as second class citizens, like LGBT folks probably don’t really care if the court does or doesn’t grant rights, or if a decision is seen as activist or not. They want the court to decide in a way that ultimately they get their rights. Period. But what it does, and how it does it is really important.

It can tell a President that his actions are not allowed by the Constitution. It can tell Congress that a law it passed violated the U.S. Constitution and is, therefore, no longer a law. It can also tell the government of a state that one of its laws breaks a rule in the Constitution.
The Supreme Court is the final judge in all cases involving laws of Congress, and the highest law of all — the Constitution.
The Supreme Court, however, is far from all-powerful. Its power is limited by the other two branches of government. The President nominates justices to the court. The Senate must vote its approval of the nominations. The whole Congress also has great power over the lower courts in the federal system. District and appeals courts are created by acts of Congress. These courts may be abolished if Congress wishes it.
The Supreme Court is like a referee on a football field. The Congress, the President, the state police, and other government officials are the players. Some can pass laws, and others can enforce laws. But all exercise power within certain boundaries. These boundaries are set by the Constitution. As the “referee” in the U.S. system of government, it is the Supreme Court’s job to say when government officials step out-of-bounds.

The US Supreme Court and Marriage Equality

Given the above, the Supreme Court will not therefor, be granting gays and lesbians the right to marry. It will however  be issuing decisions on one or two cases, each dealing with a specific law being deemed as unconstitutional. The court will either agree that the law is unconstitutional or constitutional, and will word their decision in a way that will narrowly be applied or broadly applied. A win for marriage equality will happen if the Court agrees that the Federal law commonly known as DOMA is struck down and or if the Court rules that a lower court was correct in striking down the California initiative commonly called Prop 8 which took the right to marry away from Californians.

DOMA

The Defense of Marriage Act was passed by Congress and signed by President Clinton, ad stands perhaps as the biggest hurdle blocking Marriage Equality. Because of it, same-sex couples who have been legally married are denied the full recognition of that marriage and about 1100 federal rights and privileges.   If DOMA is struck down, for the very first time in American History, legally married same-sex couples will be treated fully equal with their opposite sex counterparts.

Prop 8

In California, a case went before the State Supreme Court and their decision was that it was unconstitutional to stop same-sex couples from marrying. But California has an ability to pass a state constitutional amendment by initiative vote, and opponents of same-sex marriage were successful at getting this passed by the voters. So, while some same-sex couples were married, others were from that point on denied marriage. The constitutionality of this initiative and constitutional amendment was then questioned in courts and has worked its way up to the US Supreme Court. At the heart of this, is the issue of can a state take away rights that a group of people already had.

Possibly more complicating, in this case there is also a question about who has the right to bring this case to the US Supreme Court. This is called “standing.”  Technically, the California Attorney General would have standing, but he refused to defend the law when an earlier court struck it down.

How will they decide?

Of course narrow or broad rulings either way may have ramifications bigger than these specific questions, and people will interpret the decisions, even narrow ones as if they mean one thing or another. For example, if the Court claims that those defending Prop 8 didn’t have standing, then California will go back to having same-sex marriage. But that doesn’t mean that the US Supreme Court made marriage equality legal. It just means that the State was wrong when an unconstitutional ballot initiative was approved. Still marriage proponents will claim it means that same-sex marriage is constitutional, and opponents will claim that the justices were activist and disobeyed the will of the people. But here is the thing- the will of the people c an not be enforced upon others, if it is unconstitutional.

There are so many variations of what the Court may or may not say in their decisions, including where they may find DOMA unconstitutional (pro marriage equality) but Prop 8 constitutional (anti-marriage equality) or vice versa.

In other words, what the US Supreme Court will not do is vote for or against LGBT Rights even if their decisions are construed to mean that.