Three things to watch for on Supreme Court decision day

By Trevor Boeckmann, Task Force Holley Law Fellow

nation is ready copyAny day now, the Supreme Court is expected to issue two of its biggest decisions in the history of the LGBT movement. As you have likely heard, the Court heard arguments on the Defense of Marriage Act (DOMA) and California’s Proposition 8 earlier this year. The opinions in the cases could range from striking down all marriage bans and other discriminatory laws across the country to eliminating nearly all judicial protection for LGBT individuals, or, more likely, fall somewhere in between.

Much has been written about the options that are available, so I won’t try to reinvent the wheel here. Instead, I want to discuss three issues that I will be looking for buried in the opinions that could have a huge impact on LGBT rights in the future.

What about Wisconsin?

One of the likely outcomes in the Proposition 8 case is the so-called “seven-state solution.” Under this ruling, the court would find that once a state gives civil union or domestic partnership rights to same-sex couples that mirror marriage, they cannot withhold the title of marriage. Seven states currently have same-sex partnership rights that fit the bill: California, Colorado, Hawaii, Illinois, Nevada, New Jersey, and Oregon (originally dubbed the “eight-state solution” during oral arguments, the number dropped to seven after Delaware and Rhode Island moved from civil unions and marriage and Colorado passed a civil unions bill).

But what about Wisconsin? In 2009, the state passed a bill giving rights to same-sex domestic partners. Unfortunately, a constitutional amendment passed in 2006 prohibits same-sex marriage and any legal statuses “identical or substantially similar to that of marriage for unmarried individuals.” So, same-sex couples in Wisconsin are given a more limited list of rights than their married counterparts.

If the Supreme Court goes with the seven-state solution, look carefully to see how they write the opinion. If the ruling requires identical marriage-without-the-title recognition to be lumped in, Wisconsin will be stuck with domestic partnerships. However, broader language about marital rights like adoptions, inheritance, and hospital visitation rights could open the door for marriage in Wisconsin.

Will Judge Walker’s injunction stick around?

If the Supreme Court dismisses the Proposition 8 case on the legal doctrine of “standing” (a (technicality) that would prevent proponents of Proposition 8 from defending the marriage ban), the conventional wisdom is that same-sex marriage would be legal in California. Judge Walker, who ruled on the case after it first went to trial, issued an injunction that prevents the state of California from enforcing Prop 8. After dismissal, that injunction would presumably go back into effect, meaning California would immediately start granting marriage licenses to same-sex couples.

However, as another commentator has noted, it is not entirely clear that Judge Walker was even allowed to make that order. Will the Supreme Court address this issue? And, if they don’t, will anti-LGBT Californians go back to court to try to take marriage away (again)?

Deciding scrutiny for sexual orientation?

One of the big questions in the DOMA case is what level of scrutiny the court will give to discrimination based on sexual orientation. If the court gives “heightened scrutiny,” the review it gives when a law discriminates against women, countless anti-LGBT laws across the country will likely be struck down in the coming years as the decision is implemented. But, if it only gives “rational basis” review, the review it gives for discrimination against groups that haven’t historically been discriminated against, it is much more likely that anti-LGBT laws will remain constitutional.

Analysts expect the court to only give rational basis review, but it is important to watch how they do it. Even under rational basis, DOMA could be struck down. So, if the court says “even if sexual orientation only gets rational basis review, DOMA is unconstitutional,” the door is still open for heightened scrutiny in later cases. However, if the court says “sexual orientation only gets rational basis, and DOMA is unconstitutional,” we’ll likely be stuck in the rational basis world for decades to come. The exact words used by the justices could have a huge impact on the future of LGBT rights.

Keep an eye on these issues and follow @TheTaskForce on Twitter on decision day. We’ll keep you updated during the historic moment.