(RNS) Supporters of gay marriage rally outside the U.S. Supreme Court on March 27, 2013 as the court heard a challenge to the Defense of Marriage Act. RNS photo by Kevin Eckstrom.

What will the Supreme Court do on gay marriage?

WASHINGTON — Houston lawyer Mitchell Katine came to the Supreme Court 10 years ago for the final chapter of Lawrence v. Texas, the landmark gay rights case in which the justices struck down state sodomy laws.

(RNS) Supporters of gay marriage rally outside the U.S. Supreme Court on March 27 as the court heard a challenge to the Defense of Marriage Act. RNS photo by Kevin Eckstrom.

(RNS) Supporters of gay marriage rally outside the U.S. Supreme Court on March 27 as the court heard a challenge to the Defense of Marriage Act. RNS photo by Kevin Eckstrom.

 This image is available for web and print publication. For questions, contact Sally Morrow.

Neither Katine nor the other lawyers working for John Lawrence and Tyron Garner in their battle against Texas' sodomy law imagined the length and breadth of Justice Anthony Kennedy's majority decision, which struck down all remaining state sodomy laws.

As the Supreme Court prepares to issue two historic decisions on gay marriage this month, however, the judges and lawyers who worked on both sides of those earlier cases don't expect anything quite so eloquent or all-encompassing from a cautious and conservative court.

The consensus view: The justices will limit the expansion of gay marriage rights to California, with few if any implications for the rest of the country. Only on the Defense of Marriage Act, most agree, will the court strike a broad blow against discrimination by striking down the ban on federal benefits for married same-sex couples.

"It will really move us forward without going all the way," Katine predicts, lamenting that Lawrence and Garner did not live to witness the moment. "I really wish they had not died and could see the true fruits of their labor."

Houston attorney Gary Polland was on the other side of the issue in Lawrence. As chairman of the Harris County Republican Party, he backed the anti-sodomy statute and encouraged the state to prosecute the case. And while Katine celebrated Kennedy's sweeping declaration of homosexual rights on June 26, 2003, Polland criticized what he saw as "legislating courts."

Still, Polland said he won't be surprised or angry if the high court does what Katine expects in the two same-sex marriage cases this month. The federal government had no business getting involved in family law in 1996 by defining which married couples could receive federal benefits, he said. And unlike 2003, he said, the Supreme Court would be right to limit its ruling on California's gay marriage ban to that state only.

"I think it's going to be an incremental move, whatever it is," Polland said. "This court doesn't want to be in the position of making political decisions for the country."


The guessing game on the same-sex marriage cases is a complex one, due not only to their nature but the wide array of choices facing the justices.

In Hollingsworth v. Perry, pitting backers of California's gay marriage ban against two couples who want to marry, the ruling conceivably could affect just those two couples — or the entire country. The justices could rule broadly or narrowly on the merits of the case, or they could decide it doesn't belong before them and send it back.

Several potential decisions would have the same effect, however: Gays and lesbians in California could marry, as two lower federal courts said they could. That result, veterans of past gay rights cases say, offers the court a reasonable middle ground.

"Anything that avoids giving momentum to either side in this highly debatable and intensive social debate that's going on throughout the country would be the route, I think, that would guide them," said John Greaney, a law professor at Suffolk University Law School in Boston, who served on Massachusetts' Supreme Judicial Court and voted with the majority in the 2003 Goodridge v. Department of Public Health case that legalized gay marriage. To get five votes on the Supreme Court, he said, "you have to tailor it as narrowly as possible."

Opponents of same-sex marriage who have been on the losing side of cases dating back to Romer v. Evans — the 1996 case in which the Supreme Court ruled that Colorado voters could not rescind local laws banning discrimination against gays — take solace in the likelihood that the court won't extend gay marriage rights nationwide.

They cite several reasons for a go-slow approach: Chief Justice John Roberts' preference for narrow rulings. Justice Ruth Bader Ginsburg's criticism of the 1973 Roe v. Wade abortion decision for going too far and setting off recriminations from abortion opponents. The continuing debate that has led a dozen states to approve gay marriage and three dozen others to ban it.

"I think there's a better chance of the people of California winning it all than there is of the country being placed under a constitutional regime requiring the creation of gay marriage," said Teresa Collett, a professor at the University of St. Thomas School of Law in Minnesota, who filed an amicus brief in support of Texas' sodomy ban a decade ago.

One particularly popular prediction: The high court will decide that the ban's supporters lack the legal right to appeal the lower court rulings, given they do not represent the state government.

(RNS) Edie Windsor speaks outside the U.S. Supreme Court after oral arguments in her challenge to the 1996 Defense of Marriage Act. RNS photo by Kevin Eckstrom

(RNS) Edie Windsor speaks outside the U.S. Supreme Court after oral arguments in her challenge to the 1996 Defense of Marriage Act. RNS photo by Kevin Eckstrom

 This image is available for web and print publication. For questions, contact Sally Morrow.

"It would be surprising if the court reaches a decision about Proposition 8's constitutionality, because long-standing case law indicates that Proposition 8's sponsors do not have standing," said Suzanne Goldberg, a Columbia University law professor who represented those challenging the Colorado referendum in Romer and the Texas statute in Lawrence.

Walter Dellinger, a former U.S. acting solicitor general who filed a brief against Texas in 2003, notes the justices referred often during oral arguments to his Proposition 8 brief, which contends that the ban's supporters have no fiduciary duty to the state of California and could not appeal on the state's behalf.

Paul Smith, the lead attorney representing Lawrence before the Supreme Court a decade ago, said the decision may be several different opinions that add up to a plurality. "There's going to be at least two opinions," he predicts. "There may be five."


If the Proposition 8 decision is destined to be limited, these litigators say, the ruling on the Defense of Marriage Act in United States v. Windsor is more likely to be a broad one denying its constitutionality.

Among the reasons: Even though the Obama administration isn't defending the federal law, which creates another issue of legal standing, it continues to enforce it. As a result, Edie Windsor, the lesbian widow challenging the law in New York, is out $363,000 in estate taxes.

In addition, gay marriage proponents and opponents agree, the court probably won't want to decide both cases on narrow, procedural grounds. "I think there will be enormous pressure to decide the DOMA case on merits grounds," Goldberg said.

But both sides also predict that while striking down DOMA, the justices won't go so far as to grant gays and lesbians the additional legal protection accorded women and African-Americans known as "heightened scrutiny." That would set a precedent that could be applied in other cases.

"That might open up a plethora of additional lawsuits," said Greaney, the retired Massachusetts judge. "It would give the gay rights folks tremendous leverage going forward in all areas. The court probably would not want that."

Judging from Kennedy's questions during oral arguments in March, they say, a narrow majority of justices could decide the case on grounds of federalism, or states' rights, rather than on broader grounds of due process or equal protection.

Said Polland, the former GOP county chairman: "The federal government doesn't have any jurisdiction in the family law field."



  1. The practice of enforcing personal religious beliefs through political power has always been one of the repugnant acts of tyranny of any society. This is even more so, when a powerful majority seeks to deny basic civil rights to people viewed as immoral just due to the way that the disaproved group was born.

  2. Leslie: “… people viewed as immoral just due to the way that the disapproved group was born.” The Bible says: “For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” (Genesis 2:24) The man and the woman become one flesh through the birth of children — composed of DNA from each parent. California voters have twice attempted to define marriage as between a man and a woman through the ballot box — and won — only to be overruled by state and federal judges.

  3. WK Sloane – While I can totally appreciate your point of view, I have to say that I am tired of explaining to people why it was acceptable for their votes to be overturned but here it is again. The legitimacy of the argument is the problem. No majority (Str8 folks) can vote away the rights of a minority (Gay Folks) Plain and simple. Otherwise we could start voting away any minority rights. So after prop 8 was voted on, it was challenged, not because some people were angry, because it is illegal! People that really push the constitution are the ones who should understand that it is the reason that vote was illegal… (It’s also helpful to put your bible down when we are talking about civil rights… this country is a melting pot of religions, not just yours.. and many religions don’t have a problem with this..) I hope you understand and have a great day…

  4. David: “…helpful to put down your bible down when we are talking about civil rights …” When you start talking about civil rights, I suppose you are talking about a yet to be scientifically proved “gay gene,” which infers your civil rights are to be justified on grounds of “no choice” in being homosexual. I can grant the gay rights movement “predisposition,” but in either case, based on the gay rights assertion, I would have to consider the rights of alcoholics, adulterers, incest relationships, murderers, rapists, those who insist they were born “that way.” Wouldn’t these sins also fall under a civil right?
    However, the Bible declares “all” are born predisposed to sin, all have a sin nature: “For all have sinned and fall short of the glory of God,” Romans 3:23
    We all have to control some sin nature we were born with. If I was born to lust, in marriage, morality would require I need to fulfill my vow of faithfulness to my spouse, unless, of course, I claim I was born to lust and so therefore I have a civil right to fulfill my lust with whomsoever I choose, whenever I want. We potentially — if you follow the line of argument — would have a nation state of chaos, rapists, murderers, alcoholics, claiming birthright., i.e. civil rights because “we were born this way.”
    Also, re civil rights: California Constitution: Article 2 Voting, Initiative and Referendum, and Recall: Section 1: All political power is inherent in the people. Government is instituted for their protection security and benefit and they have the right to alter or reform it when the public good may require.”
    California Constitution, Article 1: Only marriage between a man and a woman is valid or recognized in California.

  5. This MUST be a concern for everyone on Planet Earth and precisely and specifically the US Supreme Court. 1. What makes Planet Earth so different and special than others? It has Life and in particular, Humans. 2. Is there a Formula to make Humans? Yes, there is one simple Formula. 3. Any other Formula? No, only one. 4. What is that one Formula? A Male and Female of the specie. 5. What does it do? It makes all of Mankind, and Mankind makes Everything Manmade, and forms our Civilization and Society. 6. In our Society, do we have anything that resembles and copy that Formula? Yes, in our Society, we have something called Marriage, and is the exact Formula of a Male and Female. It continues to provide Humans for our Civilization. 7. Do you think it is wise to add something to that Formula that does not work and contrary to the goal of furthering Society and Civilization? No, It would be unwise and futile to do so. 8. Will Life end if it was added? No, The M/F formula will continue to work, but Society will suffer.. 9. Is it necessary to add to it? No, the one simple formula can and will do without it. 10. So why is it so hard for 9 Intelligent Men and Woman judges to decide? They are somehow blindsided by the non-working Formula to obfuscate the issue with discrimination, rights and benefits, equality the Constitution and interpretation of it, the emotional aspect of love, feelings, devotion, living together, etc. However all these are trivial compared to the MOST important thing on Planet Earth, the Formula of a Male and Female. Pity.

  6. As long as the Supreme Court is so overwhelmingly Catholic and so overwhelmingly prejudiced with Catholic theology, as represented in Antonin Scalia, Clarence Thomas–the now-and-then Catholic–and Samuel Alito, with the usual help of John Roberts and Anthony Kennedy, it’s anybody’s guess, but you can expect limited and distorted law and logic when it comes to any decision they will render.

  7. Principles of nondiscrimination are always used as cudgels against Christians. No multitude of their idiotic nonsense is ever going to make the union of two gays anything but aberrant. No matter what they or anyone says the end goal of sexual intercourse is reproduction. Two persons of the same sex being declared ‘married’ makes a mockery of the essential elements and purpose of marriage. You cannot separate marriage from its procreative nature. And, while we’re on the subject of civil rights, there is no way to deny how the children ‘given’ to same-sex couples are literally hijacked into an aberrant lifestyle. We also cannot deny the fact that legal same-sex marriage will be disastrous for those of us who wish to uphold true marriage. In some states, we have already seen how defenders of same-sex marriage have used the power of government to undermined religious liberties.

  8. You say no majority can vote away the rights of a minority and you are correct. It is always a giggle to see how we can use the nondiscrimination hammer on behalf of gays and drop it entirely when its the Christian who needs defending. Where were you on nondiscrimination when Catholic adoption services were forced to shut down because they couldn’t in good conscience give their babies to gay couples? Where will your hammer be when the gays are back in court demanding the right to marry in the Catholic Church? I wonder which minority group you will hammer in that case. I think it’s a good bet that you won’t see anything unfair about stripping Catholics of their religious rights and forcing them to marry gays. Legalizing gay marriage will be a disaster for Christians and people of faith everywhere who as a matter of conscience want to preserve the institution of marriage as a union between man and wife.

  9. There is an easy Right way or a hard wrong way for the US Supreme Court to rule on Same Sex Marriage. The Hard wrong way is to cave in and say “YES” to SSM. This Choice will involve a lot of uncertainties and a lot of related issues and complicate our Govt., Society and everyone’s lives. The beginning would involve producing new forms and changing documents. Many things will need to be rewritten and reworded. Issues would include Rights and Benefits, equality and whether it is in the Constitution. Whether Marriage is a Right for same Genders. Discrimination and the special status they have. Then there is Marriage Rights, adoptions, divorces, custody, biological and non-biological Children, surrogacy, property Rights and dissolutions. Also with the IRS, Social Security, pensions, medical inclusions, insurance coverage, job related issues of reasons for leave and maternity. Affecting the Military from housing to programs. From this short list of potential conflicts, it can be determined to be a messy, dragged out Choice. The Right way is the easy simple way, say “NO” to SSM, and everything stays the same as it exists now and has existed with no changes. Everything stays and remains in place. DOMA becomes moot. The Right Choice. Problem solved, quick and easy. Pity.

  10. Dorinda, I’m sorry you’re so ignorant and also completely dishonest. The following statement you said is a blatant LIE:
    Where were you on nondiscrimination when Catholic adoption services were forced to shut down because they couldn’t in good conscience give their babies to gay couples? Where will your hammer be when the gays are back in court demanding the right to marry in the Catholic Church?
    This is 100 percent FALSE. FIrst off, Catholic adoption agencies had traditionally adopted children readily to gay couples. There was never an issue with this. How do I know? My husband (yes, my same sex husband) used to work for Catholic Charities who regularly adopted children to gay couples. They sometimes sought out gay couples because they were superior parents to heterosexuals in many cases. So, the LIE you are telling is that the state of Masssachusetts forced Catholic adoption agencies to adopt to gay couples. FALSE! Under state law, adopting agenices that recieve STATE money are required to obey state law, which meant they could not discriminate against same sex married couples. So, you Catholics used innocent children as pawns in your fight against civil rights and equality and then cried as if you were victims. Disgraceful, and so very typical of you religious types. I’m so tired ot this “religious liberty” debate. If our country had the same laws as France, Germany and a host of other countries, then NO religious group would be allowed to marry any couple and they would be required to marry at city hall Religious groups have become so arrogant that they think they own the concept of marriage. If we stripped you of the right to “legally” marry couples, you could no longer cry like the babies you are.

  11. PS Catholic Charities and other religiously based adoption agencies have always been free to discriminate against ANY group for any reason, but they may NOT take state money and do so. So, your bogus LIE that they were shut down because they refused to adopt to married gay couples is a fallacy if not a blatant LIE. Washington, DC basically told the adoption agencies the same thing as Massachusetts. If you accept city money you may NOT discriminate against gay couples. If you don’t accept that money, you are free to do what you want. So, stop lying and perpetuating this nasty myth. You people have no integrity. Thank goodness most Catholics support marriage equality and you are in the minority.

  12. Daniwitz, what concerns me is not denying gays and lesbians the equal right to marry, but that our planet is dangerously overpopulated. If you were seriosly concerned about the human race, you would not be advocating for procreative relationships, rather the opposite. The government would do well to promote birth control, abstinence, and same sex marriage. If humans don’t SLOW our breeding practices, our planet is doomed with 200 years. We do not need more humans. 8 billion mean anything to you? And, the Catholic church is a group of criminals if you ask me. Any group which discourages birth control, aka responsible procreation, is a criinal group and should be prosecuted as such. In Mexico and the Philippines the governments are on active campaigns to reduce population by teaching about birth control and handing out birth control devices. Mexico has been successful at reducing average family sizes from eight (yes, EIGHT) children down to five per family. It has been a resounding success despite being fought by the evil Catholic church (who else?). When your bible was concocted it was necessary to propogate the planet. The exact opposite is true in 2013, and rather than force women to abort children in China, the government would be wise to promote same sex marriage. Homosexuality exists in the animal kingdom precisely for this biological function.

  13. Many experts have said we are headed toward a planet with 9 billion people within a decade. This is more humans than have been alive over all of recorded history prior to today COMBINED. Go ahead and bury your head in the sand and stick by your antiquated notion that procreation is good for society. I disagree, as do most scientists who’ve studied this issue. You talk about the collapse of society as we know it? It won’t be gay marriage that does it. Keep breeding and see what happens.

  14. PPS why would any gay couple want to marry in a church that condemns and rejects them? This has never made logical sense to me. Gays have been welcome in many Christian, Jewish and Buddhist groups and they certainly have enough self respect not to attempt to marry in a place where they are not wanted. Like it or not, your ‘god’ has already been marrying gays for decades. But, I propose removing the right to legally marry couples from ALL religious groups, as is the law elsewhere. Some Catholic leaders actually agree with this, and have decided to no longer sign marriage licenses that are granted by the state. I completely respect this, and wish that other clergy would do the same thing. In my book the only marriage that is legit is the one that happens at city hall. All other ceremonies could be called “holy matrimony” because they are NOT a marriage.

  15. WK Sloane, I respect your beliefs (no matter how misguided), but the bible has no say in our legal system. We made the mistake of allowing religious groups to legally marry couples. It should have never happened. Such a thing is illegal in France and Germany where marriage is strictly secular and if you don’t marry at city hall you are not married. Secondly, I don’t care if California voters voted 100 times to deny gays and lesbians the right to marry, it is still immoral to vote on civil rights. California voters once voted by 67 percent of allow landlords the right to refuse housing to black people. I would hope you wouldn’t support the “will of the people” in that case. But, I’m not so sure, because the bible has been used to justify everything from the demeaning of women to slavery, so I wouldn’t put it past you.

  16. Dan. If you asked me why do we deny Homosexuals the right to get pregnant with their partner, is a similar question as to equally get Married. They are both impossibles. Homosexuals are not denied to live and love their partners for a 100 years if its possible. In Life one takes the avenue one wants. On that avenue are all the rights available for that avenue. Gays are on one avenue, with all their rights, but somehow want all the rights taken by others and their rights on that avenue. That’s not equity, that is greed, but you can not see it that way, cause that is how greedy people think. Pity.

  17. Dan. Scientist have said the same things in the past.of overpopulation in the 30’s 50’d 80’s up to now. Yet we are surviving. Many Countries in the news are concerned about losing their populations for growth. Don’t you read them? We are a Great Nation today because of our 300+ Million People of which you are one of them. Are you sorry that you were born? Has the US failed to keep up with each growth? Oh ye of little faith. You are ONLY using population for your agenda. it fits into your so called argument for homosexuality, nothing else and nothing more. Pity.

  18. Daniwitz,
    Yes, scientists have been saying the planet is overpopulated for some time now, and it is tragic that this dire warning is being ignored. I am proud of Mexico and the Philipphines for taking measures to stem their growth. No, I’m not sorry I was born, nor that any human is born. What I’m saying is that if we don’t take this issue seriously, as China has done with its forced abortions and limiting families to one child, then our species faces extinction. Sooner or later this will happen. PBS recently aired a story and one researcher made this startling claim: We will not have enough food to feed nine billion people and we are headed there as we speak. So, it’s a pity that you think this is a joke. I bet you think global warming is a hoax, as well? I don’t, and neither do scientists Again, we need fewer humans and if the government were interested in promoting healthy procreation, they would be passing out condoms not marriage licenses.

  19. Daniwitz, you have made this very easy for me. First off, marriage has nothing to do with procreaiton. I don’t care how many times the Catholic church tries to link the two concepts, they are different issues. If you look at the benefits of marriage that are granted to married couples, I can think of only one that pertains to children, and that’s the tax write off for dependants. This applies to adopted children, as well as children from previous relationships/marriages. The government makes no distinction between adopted children and biological children, nor should they. Instead, if you look at the benefits of marriage, they pertain to the end of our lives, social security benefits, inheritance rights, Veteran’s benefits, etc. So, what does that have to do with procreation or raising children? Gay couples, as you’ve rightly pointed out, form lasting relationships, just as heterosexuals do. I’ve been with my husband for eleven years, although only married for five years. I have health insurance for the first time in my adult life due to my marriage. I was forbidden from getting such benefits (from his employer) before we were married. Over 40,000 children in my state are being raised by gay parents, many of them biologically related to those children. It is illogical to deny those children the same rights as children of opposite sex couples. What you are saying is that only biological children of both parents matter, and this insults heterosexual couples who adopt of have blended families. Nobody is saying that it’s not in the best interest of children to be raised by their own “good” biological parents. The issue is that many heterosexuals are bad parents, and you people seem to never admit nor “own” your failings in this regard. If heterosexuals were compentent parents, there would be no children for gay couples to adopt. Instead of blaming gay families who take these unwanted children and raise them lovingly as their own, how about taking responsiblity for the humans you create for a change?
    And, I was happy that the lawyers who tried to defend Prop 8 in the Supreme Court didn’t make mention of families with adopted children as being less worthy of governmental protections, because it is well known that a Chief Justice John Roberts has two adopted children with his wife and NO biological children. You would have lost your case instantly if you even suggested that his family was unworthy of governmental protections as it relates to marriage.
    See how easy that was? Your argument is invalid. As far as greed goes, the only greedy people I see are the heterosexuals who: 1 breed children you don’t want, and you give them away like they are puppies. 2 heterosexuals who can’t accept the fact that gay families exist, and we’ve always been here fending for ourselves without the aid of the government. Guess what? We’re about to change that. Get used to it. I’ve been married five years and no precious heterosexuals have been harmed. I didn’t marry my husband in order to “denigrate” the instutition of marriage nor harm heterosexuals, and if that’s what you think, you are a paranoid individual who needs help from a mental health professional. I married my husband for the same reason heterosexual couples marry: it had nothing to do with the desire to procreate. It was about love, and the fact that we want financial security and protections. I want my husband not to be evicted from our home if I were to die. I want to be exempt from paying inheritance taxes if he dies, and I want to be able to collect his social security checks because we’ve built our lives together. Stop being selfish and greedy and learn to share. In short; grow up.

  20. Dan. I visited this website once and was stunned by your attitude. You seem to be a very unhappy and angry man. In the past I have been able to resist the temptation of engaging with you. I will probably kick myself for doing so now, as the combative nature of your responses are truly embarrassing. However, I would like to ask if you deny that it was the gay activists that took court action against Catholic Charities? Do you deny that it was because they prevailed in Court that Catholic Charities lost their funding? And, if, as you say, Catholic Charities had always been so willing to hand over children to same-sex couples, then why did the gays file suit? As for the success of the one-child policy in China, does it not at some level strike you as unjust to drag a woman into an abortion clinic against her will? There are horror stories on that. Are you aware that what you call success in that country has resulted in such a shortage of females that many are now blaming much of the globe’s human trafficking on China? Do you not see the problems we are already having because our elderly population outnumbers the young? There are many more questions I would ask you, but the one uppermost in my mind is simply this: What makes you so stridently think you have all the answers?

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