Georgetown law Professor Marty Lederman has a very helpful post outlining the Supreme Court’s options in the case challenging the constitutionality of California’s Proposition 8, which bans same-sex marriage in the state:
[T]hese are the five options offered to the Court:
(i) The Court could uphold the constitutionality of Proposition 8 — that is, hold that states may limit the civil institution of marriage to opposite-sex couples.
(ii) The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding” (although it would have a practical impact only on the forty-one states that continue to prohibit same-sex marriage).
(iii) Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself . . . and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution” suggested by the United States today, which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways but one.
(iv) A California-only holding: The Court could hold, as did the court of appeals..., that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, and where that state has at one point allowed those same-sex couples the right to be married — a set of conditions that presently describes only the state of California — there is no constitutionally adequate justification for withdrawing that right from those same-sex couples. Such a holding would not require the Court to decide whether a state may more broadly discriminate in favor of opposite-sex couples, or even whether a state may in the first instance offer same-sex couples all of the same rights, privileges, etc., that opposite-sex couples enjoy, except for the status of marriage.
(v) The Court could dismiss the appeal on standing grounds, without (a majority) resolving the merits.
Many analysts believe that the Court will ultimately opt for either option iii or option iv. These are so-called “judicial minimalist” choices that would strike down Proposition 8, but leave all or most other state laws banning same-sex marriage in place.
The Court may well indeed try a “minimalist” approach. But even a decision limited to California alone would be extremely significant, since California is the nation’s most populous state, with a population of some 37 million. Moreover, it is difficult to logically distinguish California from the other seven states that have civil unions for same-sex couples, but not gay marriage. The fact that California briefly had full gay marriage before shifting back to civil unions, while these other states did not doesn’t strike me as a persuasive distinction. In his 9th Circuit lower court opinion on this issue, Judge Stephen Reinhardt contended that the difference is that deliberately withdrawing the label of marriage from same-sex unions while retaining all of the material benefits thereof under the civil union label is an indication that the withdrawal was purely the result of irrational “animosity” towards gays and lesbians. Maybe so. But irrational homophobia on the part of some of the public is likely a major reason why the other seven states with civil union laws have not adopted full-blown gay marriage. An “eight state solution” that includes big states such as Illinois, New Jersey, and Oregon, as well as California, will have a profound national impact. Ultimately, I don’t think there is any truly minimalist alternative in the Proposition 8 case, except perhaps dismissing it on procedural grounds.
The eight state approach would also create an interesting incentive structure for the thirty-three states that still don’t have either gay marriage or civil unions. These states, especially the more conservative ones, might hesitate to adopt civil union laws for fear that doing so would automatically force them into full-blown gay marriage mandated by the courts.
If the Supreme Court tries the “fifty state holding,” I think it should pursue an option not mentioned by Lederman: striking down Proposition 8 because laws banning same-sex marriage qualify as unconstitutional sex discrimination, as opposed to discrimination against gays and lesbians. For reasons, I outlined here, the sex discrimination argument has stronger support from logic, precedent, and original meaning than the other arguments against Proposition 8:
[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.
Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.
By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation.....
All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”
I doubt the Court will actually rule this way, both because it may hesitate to make a ruling that applies to all fifty states, and because many people find the sex discrimination argument less intuitively plausible than the idea that Proposition 8 discriminates against gays and lesbians, and laws that discriminate on the basis of sexual orientation should get heightened judicial scrutiny.
But, despite its relative unpopularity, I still think that the sex discrimination route is the right approach. And, as I note in my earlier post linked above, concluding that same-sex marriage bans qualify as sex discrimination doesn’t mean that they will automatically be invalidated. It just means that they would be subject to heightened “intermediate” scrutiny, which requires the government to show that they are “substantially related” to an “important state interest.” I’m skeptical that Proposition 8 and other similar laws could pass that test. But opponents of same-sex marriage would surely argue otherwise.