The U.S. Supreme Court is considering whether to review two sets of decisions by lower courts involving same-sex marriage. Despite widespread anticipation, the court did not announce today whether or not it would hear the cases, so everyone will have to wait till at least Monday.

A same-sex marriage protester before the U.S. Supreme Court. (Chip Somodevilla/Getty Images)

One set of rulings the court is weighing overturned the Defense of Marriage Act, or DOMA, a federal law that defines marriage as the legal union of one man and one woman for the purposes of legal recognition and receipt of benefits, such as the ability to file a joint tax return. In the other case, an appeals court upheld a lower court’s ruling that invalidated California’s Proposition 8, which bans same-sex marriage.

KQED’s Scott Shafer interviewed Vikram Amar, a constitutional law expert at the University of California, Davis, to get a better idea of what issues are at play in the court’s decision of whether to take up the matter of same-sex marriage. Edited transcript…

Scott Shafer: What is the standard the Supreme Court uses for granting review of a lower court’s ruling?

UC Davis law professor Vik Amar: A very small percentage of cases in which review is sought are granted certiorari, or review. They get 7-8,000 petitions a year and they grant maybe eight. So you are talking about maybe one in a hundred. Cases that involve national issues and cases that involve a statute of Congress, or cases in which a statute or initiative of a big state like California have been struck down by a lower court stand a much better chance of getting the Supreme Court’s attention.

The two most important factors the court looks at are how important is this issue and how much confusion or variant is there in the way lower courts are dealing with it. In those cases, it’s going to grant review even if it thinks the lower court got the decision right. So it’s not about doing justice in an individual case, it’s about clarifying questions in constitutional law.

Scott Shafer: By this standard how strong is the case for taking up the Prop. 8 issue?

Vikram Amar: Judged by that standard, the Prop. 8 case has a very strong argument for review, probably not as strong as the DOMA cases out of the First Circuit, because in those cases a federal court of appeal struck down an act of Congress.

In the Ninth Circuit Prop. 8 case, a court struck down an act of California. And while California is incredibly important, it’s not quite on the level of a federal statute. So I think if the court were granting review of only one law, I would expect it to grant review of the DOMA cases.

Scott Shafer: What would be the argument for combining not just the DOMA cases but  DOMA with Prop. 8?

Vikram Amar: They could do that to get a better idea of the different sides of the same-sex marriage controversy. Remember in the DOMA cases the question posed is whether the federal government has to recognize people who are married under a state law that permits same-sex marriage. So in those cases,  same-sex couples are not arguing that there is an affirmative constitutional right to get married. They are just saying, “If the state I live in accepts it, then you the federal government should accept it for the purpose of benefits as well.”

The Ninth Circuit court tried to limit its reasoning on Prop 8 so it wouldn’t call into question bans that other states have on same-sex marriage, because those bans are different than Prop. 8 in certain respects. But I don’t think the court is going to find that limiting aspect of the Ninth Circuit opinion in the Prop. 8 case persuasive.

So in some sense the DOMA cases are narrower than the Prop. 8 case, but in another aspect the Prop. 8 case is narrower because it’s a California statute. So you could argue that the court should take one or the other. But you could also argue that the court should take both so it could have the full range of issues concerning same-sex marriage before it when it decides to weigh in on same-sex marriage.

If the court takes the Prop 8 case it could do all kinds of things with it. It could decide that the Prop. 8 sponsors lack standing in federal court and erase the whole Prop. 8 litigation on that basis, which would leave same-sex couples in California free to get married because neither the governor nor the attorney general is going to stop them. But it wouldn’t really provide a judicial ruling in favor of same-sex marriage the way the Ninth Circuit opinion did.

Scott Shafer: So if they did that, would it only apply to just the four plaintiffs? I know there was an argument earlier that this wasn’t a class action.

Vikram Amar: So in legal technicality, the only couples who would have a right to marry would be those who sued to marry in Vaughn Walker’s court. But since we know that the governor and the current attorney general are going to take the same position that Gov. Schwarzenegger and then-Attorney General Brown took in not defending Prop. 8, then any other same-sex couple could file suit, and this one could be a class-action suit, and we know what the result would be. It’s just a matter of a little time and a little process.

Scott Shafer: Looking at the big picture here, how has the legal landscape changed since 2008 when Prop. 8 first passed?

Vikram Amar: I think the legal landscape has changed in that you have courts of appeal having struck down DOMA, and you have the Ninth Circuit court that has struck down a state’s ban on same-sex marriage.

These decisions by federal courts of appeal are the first of their kind arguing in favor of at least some kinds of rights of same-sex couples to marry in some sets of circumstances. And that’s a dramatic difference in terms of  lower court law.

The other thing that has changed is that you have legislatures and electorates that have weighed in in different ways. Just earlier this month we had for the first time same-sex marriage winning at the ballot box.

And even though strictly speaking the constitutional questions are separate from the question of whether the people of the United States in their various state legislatures and their state populaces want to have same-sex marriage, the reality is that whether there is a federal Constitutional right to something depends on the way states are resolving the questions about these things and how common or unusual is the state’s practice that is being challenged.

Scott Shafer: In that regard, the Human Rights Campaign is running ads in Washington D.C. They are not aimed at the Supreme Court specifically. But the judges presumably watch TV from time to time, and hopefully listen to the radio. Do you think this has any impact on them?

Vikram Amar: I think some members of the court don’t want to issue rulings that with the hindsight of 10 or 12 years look anachronistic and look like they mispredicted the arc of history. But at the same time some members of the court don’t want to get too far ahead and make predictions that may not turn out to be true, which is why in general the court likes to wait and see how these issues play out in political circles for some period of time and not have to weigh in before the trend lines are clear.

In the case of DOMA I don’t think they can avoid taking the case because the First Circuit and now the Second Circuit have struck down a federal statute. In the case of Prop. 8 and the full frontal assault on bans on same-sex marriage, I think the court might want to wait a while before resolving that.

On the other hand, the conservatives on the court might think about Justice Kennedy, whose vote would be necessary in order to protect a right to same-sex marriage — you can’t get to five votes in favor of same-sex marriage without Justice Kennedy. The conservatives might think now is the time to resolve same-sex marriage because Justice Kennedy might not be ready to proclaim any kind of national right.

And a decision against same-sex marriage now, if that’s what they would like Kennedy to join onto, might make it a little bit harder for the court to reverse itself in the intermediate term, even if the trend line changes with the elections in 2014 and 2016 and beyond.

Scott Shafer: Finally if they do strike down DOMA, what difference would that make in California?

Vikram Amar: The circuit courts ruled against DOMA on the grounds that couples in states that recognize same-sex marriage should also have federal benefits. It’s not clear that that rationale would also apply to those states in which same-sex marriage is available by virtue of a federal judicial ruling, as in California and the Ninth Circuit.

But putting that aside, what invalidation of DOMA at the Supreme Court level would mean is that in every state that recognizes same-sex marriage, same-sex couples in that state would be entitled to the full range of federal benefits concerning social security and survival benefits, tax consequences etc. It would harmonize federal law with state law in those states that recognize same sex unions.

Scott Shafer: But it would not compel, say Nevada, to recognize same-sex marriage in California…

Vikram Amar: No. the First Circuit in its DOMA ruling was very clear that it was deciding whether the federal government had to follow the lead of those states that recognize same sex-marriage, without deciding that there was a general right to same-sex marriage that compels states that haven’t already recognized it to do so.

Scott Shafer: What do you think is the most likely scenario?

Vikram Amar: I think it would be extremely unlikely for the court to grant review of Prop. 8 and not DOMA. I think it would also be extremely unlikely for the court to deny the Prop. 8 case altogether — that is, to just leave the Ninth Circuit decision alone. I think they will either grant cert in both the DOMA and the Prop. 8 case, or perhaps more likely they will grant it in the DOMA case and sit on the Prop. 8 case, and we won’t know what they’re going to do with that until after they resolve DOMA.

End of interview, and if you read this far you’re probably ready to take the California Bar Exam. We’ll see what happens next week.

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