Privately, advocates for both sides have said they doubt the justices will throw the cases out on technical grounds such as standing, but rather will go straight to the merits of the cases and rule on the constitutionality of the marriage laws themselves.
Standard of review
A second pivotal issue is the standard of review that should apply to cases involving sexual orientation and equal rights.
Currently, such cases are given “rational review,” which means the courts assume legislatures have legitimate reasons for their laws, and anyone trying to change a law must prove that it is irrational and serves no state purpose — a high bar to meet in many cases.
Gay-marriage supporters in both cases want the Supreme Court to treat their claims with “heightened scrutiny.” If they succeed, they would likely win their cases, as several federal courts have already said they cannot find legitimate reasons to limit marriage to one man and one woman and not to same-sex applicants under a standard of heightened scrutiny.
Traditional-marriage supporters, however, counter that “sexual orientation” is not, and cannot be, a discrete, inborn, unchanging status that is deserving of protected legal classification, in the same way that race and national origin receive special legal protection.
They therefore are asking the high court to give the cases so-called rational review, and force the gay-marriage supporters to explain why it is in the best interests of the nation to change, or redefine, marriage in California or for the United States.
Possible court rulings
As for decisions on the laws themselves, with Proposition 8, the high court could:
• Uphold the gay marriage ban as constitutional. This would leave the voter-passed initiative — which cannot be undone by California lawmakers — in place until voters pass another initiative repealing or amending the statute. A Supreme Court ruling upholding Proposition 8 would also send a clear message to other states that they can legally define marriage as the union of one man and one woman, as dozens have already done.
• Strike down Proposition 8, immediately legalizing gay marriage in California. That course also raises the likelihood that constitutional provisions and laws that forbid gay marriage in all states would be invalidated — something traditional-values groups call “the Roe effect,” after the 1973 abortion ruling by the high court that instantly struck down anti-abortion laws and statutes across the country.
• Alternatively, the justices could agree on an option that says the smaller subset of states that have legalized civil same-sex unions and domestic partnerships must now call these unions marriages. Such a “nine-state solution” would apply to California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
Regarding the federal DOMA decision, the high court justices could:
• Uphold the section of the law that explicitly defines marriage for purposes of federal law as the union of a man and a woman. This would vindicate congressional lawmakers who believed the federal government, as a sovereign power, could keep the historical, traditional definition of marriage for its programs, and not be forced to comply with one or more states that chose to change their marriage laws to sanction same-sex unions.
• Strike down the provision that refuses to recognize state gay-marriage statues. This would immediately permit legally married gay couples or, in some cases, a surviving spouse in a same-sex marriage to have access to marital and tax benefits at the federal level. For plaintiff Edith Windsor, 83, a New York widow whose case is the plaintiff in the DOMA case, such a ruling would refund her the $363,000 in estate taxes she was required to pay after the death of her spouse, Thea Spyer.