“A Cinderella moment,” gushed a gay-rights advocate when the Supreme Court announced its two landmark decisions in June.  California’s Proposition 8—an amendment to its constitution—went down (Hollingsworth v. Perry), as did the federal Defense of Marriage Act (United States v. Windsor).  The New York Times saw a “huge and gratifying” victory for equal rights.  The Windsor case struck down the “odious federal law that denied federal benefits to same sex couples.”  The “momentum for marriage equality seems unstoppable.”  But, the Times concluded, “there are miles yet to travel on this civil rights journey.”  Well, actually, not so many miles—the Court, as a practical matter, established a national rule that participants in “gay marriage” get full federal benefits.

The question always is, Who is to decide?  The federal courts, for example, have made it pretty clear they will always favor gay rights.  If the issue stays in that venue, we know how it will come out.  The governors in blue states may or may not do likewise: While he was California’s governor, Arnold Schwarzenegger refused to defend Proposition 8.  Governor Christie of New Jersey, on the other hand, still opposes “gay marriage.”  Democratic presidents will always favor gay rights: President Obama refused to defend DOMA.  If the people decide, however, the result is different.  So far only 9 state legislatures have adopted “gay marriage,” while 33 have adopted provisions defending marriage.  Gays have chosen litigation, correctly believing they will fare better in the courts than if they let the people decide.

Gay rights have come a long way in a hurry.  Ten years ago sodomy was still a crime in many states.  The Supreme Court found state laws banning sodomy constitutional as recently as 1986 (Bowers).  In 2003, the Court reversed field and found the laws unconstitutional because homosexuals’ “right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government” (Lawrence).  Now the Supreme Court has struck down DOMA’s definition of marriage because Congress supposedly was motivated by animus toward homosexuals.  Gays have moved in a decade from being potential criminals to a protected class holding a fundamental right.  Technically, the Court’s ruling just affects people married in states that recognize “gay marriage.”  As a practical matter, however, the ruling is national: Any couple who can afford to get to a gay-marriage state can qualify for federal benefits.  For example, any gay couple from Texas can spend a weekend in New York, catch a Broadway show, and get married.  A New Jersey couple can take the PATH tube into the city, get married in the Municipal Building, and celebrate with linguine in Little Italy.  When the couples go home, they will receive full federal benefits—probably retroactive for years.  The federal-benefits issue is over.

The big issue—since the Massachusetts Supreme Court in 2003 ruled its constitution, dating to the Pilgrims, required “gay marriage”—is whether a Massachusetts “gay marriage” is to be imposed on the rest of the country.  Are the other states required to recognize it?  Are the laws of the other states banning “gay marriage” to fall?  What about state laws respecting state benefits?  As U.S. Rep. Peter King (R-NY) said during a 2003 congressional debate, “[W]e absolutely do not want to see Massachusetts law imposed upon the entire United States of America.”  The Full Faith and Credit Clause of the Constitution requires each state to accept “the public acts, records and judicial proceedings” of other states.  Section 2 of DOMA—not challenged in Windsor—prevents states from being required to recognize another state’s gay marriage.  Assuming the Court eventually finds Section 2 unconstitutional, the Court will be free to say what Full Faith and Credit requires.

The late Judge Robert Bork and Yale Law Prof. Lea Brilmayer debated what would happen when the Court gets the issue.  Professor Brilmayer argued that the Court’s “longstanding precedent” holds that a state need not recognize another state’s marriage laws “if those laws are contrary to strongly held local public policy”—e.g., a marriage of children or those closely related.  Judge Bork, on the other hand, responded that “very probably” the Court, “once more embracing elite opinion, will force homosexual marriage on the nation.”  Maybe Professor Brilmayer is right.  Maybe the late Judge Bork was right.  The point is, we won’t find out until the Supreme Court decides the question years down the road, when it will be too late for one side or the other.  But does the issue have to be left with the Court?  No.

There are two ways to remove a case from the Supreme Court’s docket: by constitutional amendment, or by a “stripper” statute limiting the Court’s appellate jurisdiction (the authority to hear an appeal).  A constitutional amendment is out of the question.  The states would probably ratify it, but the procedure requires a two-thirds vote of the Senate before an amendment can be proposed to the states, and that’s politically impossible.  But a simple statute passed by a simple majority in Congress and signed by the president would ensure that each state could decide for itself.  Congress just needs to add one sentence to what’s left of DOMA: “This law is not subject to review by the lower federal courts or the U.S. Supreme Court.”  The statement removes or “strips” any future cases from the federal courts.  Future cases will be decided by state courts.

Establishment Republicans welcome the Court’s decisions, since they hope such rulings will remove “gay marriage” from political debate.  The issue has always embarrassed them, and they now think it has lost its political usefulness.  George W. Bush won in November 2004 thanks to an anti-“gay marriage” referendum in Ohio.  To keep “gay marriage” alive as a political issue, the President refused to endorse H.R. 3133—a bill stripping the federal courts of the power to deal with DOMA.  The bill passed the House in mid-2004, but Bush let it die—even though Republicans controlled the Senate.

Elite Republicans view the social issues dear to their base with disdain.

Some conservatives take comfort in what the Court didn’t do: It didn’t create a federal right to “gay marriage,” and it didn’t declare a new national definition of marriage.  It did not create a new Roe v. Wade.

That is not a cause for celebration.  There is an advantage to the Roe v. Wade approach: It brings the issue to a head.  Everybody knows where the Court stands.  The Court’s strategy this time—the same strategy as that of gay-rights advocates—is borrowed from the Roman dictator and general Fabius Maximus.  In the Second Punic War, Fabius knew that, if he directly confronted Hannibal, who had crossed the Alps and was invading Italy, he would lose.  But, since Hannibal was far from home, time was on Fabius’ side.  So he avoided battles, preferring instead to harass Hannibal, attacking his supply lines in order to weaken him over time.  Similarly, gay-rights advocates do not seek a direct confrontation.  They have not yet attacked Section 2 of DOMA—the Full Faith and Credit Clause.  They want to keep the giant sleeping.

Anyone who still has some hope for the Supreme Court should note that Justice Scalia supplied the fifth vote effectively to overturn Proposition 8.  One possible explanation is that he didn’t have the votes to uphold the California ballot initiative, so he chose to defer the ultimate decision to a later day by saying the Court had no jurisdiction.  The majority vote in the Proposition 8 case was unusual: Roberts, Scalia, Ginsburg, Breyer, and Kagan.  Perhaps Ginsburg, Breyer, and Kagan voted to defer because they feared overturning Proposition 8 would ignite a firestorm to the detriment of gay rights.

The Court in Windsor appointed Vicki Jackson, a Harvard law professor, as amicus curiae to brief and argue the jurisdictional issue.  Ted Olson, attorney for the plaintiffs in the Proposition 8 case, told the Fourth Circuit Judicial Conference on June 28 that the plaintiffs’ attorneys thought the Court’s “conservatives” had sought the appointment on the jurisdictional issue to protect themselves from an adverse decision on the merits.

The Court, finding the proponents had no federal standing, vacated the Ninth Circuit decision, leaving the district-court opinion in place.  The district court had found Proposition 8 violated the Due Process and Equal Protection clauses of the U.S. Constitution.

The Court’s rulings do not expressly impose a new national standard requiring “gay marriage” in the states.  The Windsor holding finds discrimination only in those states that have adopted gay marriage: Federal benefits go to New York gay couples but not to those in New Jersey, which has civil unions, or South Carolina, which has neither.  Will the line hold?  Does it make any sense?

Already, gay-rights advocates are complaining about what they call a “patchwork” system.  Justice Alito, at oral argument in Windsor, presented the following hypothetical:

So let’s say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in—in a hospital.


The first is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that allows that, but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn’t allow either.  Now, your argument is that, under Federal law, the first would be admitted—should be admitted, but the other two would be kept out? . . .

Your position seems to me, yes, one gets in, two stay out even though your legal argument would lead to the conclusion that they all should be treated the same.

The line drawn by the Court cannot be held.

The Court is not authorized to issue advisory opinions.  There is supposed to be, according to Article III, a “case or controversy.”  Neither case, under the Court’s analysis, presents “a case or controversy.”  In Windsor, the government refused to defend DOMA, so the Court should have simply entered a consent order directing the government to pay.  Already, the district court had granted plaintiff’s motion for summary judgment and “awarded judgment in the amount of $353,053.00.”  That should have been the end of the case—Miss Windsor just had to enforce her judgment.  The continuation of litigation is inexplicable except on the assumption that both parties—Miss Windsor and the government—wished to get a Supreme Court opinion establishing gay rights.  But wishes do not, of course, confer jurisdiction.  Chief Justice Roberts, in his dissent, was clearly right in finding the Court had no jurisdiction.

Proposition 8 also, as the Court found, should not have been before them.  The Court found that since Governor Schwarzenegger and the California attorney general refused to defend the case, no one else could defend it.  So the proper result should have been a default or consent judgment by the district court overturning Proposition 8.  The California Supreme Court had found the proponents of the proposition had standing—and the Ninth Circuit agreed—but the Court ruled that it was a federal question and they lacked federal standing.  A referendum is the people’s law.  The Court’s ruling allows the governor to veto the proposition.  The problem with that, of course, is that the only purpose of the referendum process is to give the people a direct voice when the government has failed.  The Court’s holding that no one other than the official government is authorized to defend a proposition in federal court, or to appeal an adverse ruling, is unattractive.

Both sides agreed to avoid a Roe v. Wade moment that would directly overthrow the laws of 38 states.  But that moment is not far off.  The Court’s legal rationale is unclear—mixing, as it does, elements of federalism, due process, and equal protection—but it did clearly signal its intentions:

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.  This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The Court added that DOMA “demeans the couple whose moral and social choices the Constitution protects.”  The Court went on to say “it humiliates tens of thousands of children now being raised by same-sex couples.”

The Court took two cases where there was no case or controversy present in order to advance gay rights.  Both DOMA and Proposition 8 were passed to reverse court decisions: DOMA was intended to contain a 1993 decision by the Supreme Court of Hawaii, and Proposition 8 reversed a 2005 decision by the Supreme Court of California holding that the California constitution mandated “gay marriage.”  Now the judiciary has struck down both efforts to rein in the judiciary.  The gays’ litigation strategy has been a comprehensive success.  Their success will continue if they can keep the issue away from the people.  The opponents of “gay marriage” continue to have a simple choice: They can either muster the political clout to strip the federal courts of jurisdiction, or end up like Hannibal.