Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales. In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.
This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage. On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008. On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.
Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution. As is often the case with Supreme Court cases, however, procedural issues may be decisive. In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute. Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity. The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.
Lurking below are the “big picture” notions that only the Supreme Court can truly consider. Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes? If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare? And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy? Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.
There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments. This week, history will be made in the solemn Supreme Court oral argument chamber.