Opinion: Columnists

Philip Klein: The Supreme Court's political option on gay marriage

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Opinion,Philip Klein,Columnists,Politics Digest

Last year's Supreme Court decision upholding the constitutionality of the individual mandate in President Obama's health care law reinforced two things about the nation's highest court. First, the justices' decisions can be very difficult to predict based on oral arguments. And second, the court itself often functions as a political body.

On Obamacare, the court ruled that the mandate wasn't justifiable under Congress' power to regulate commerce but upheld it anyway as a tax. The ruling also gave states a choice to opt out of the law's Medicaid expansion. It was a political compromise.

So when analyzing this week's oral arguments on gay marriage, it's worth considering what a political compromise among the justices on this issue might look like.

Public opinion on gay marriage has changed rapidly over the past decade. It is now legal in nine states and the District of Columbia, and effectively legal in California (although this could change depending on the Supreme Court's ruling). At the same time, 38 states have banned same-sex marriage.

Therefore, the larger political question is whether such a major social shift should play out at the state level or whether the Supreme Court should intervene and settle the issue for the nation as a whole.

On Tuesday, the justices heard oral arguments in Hollingsworth v. Perry, a case that deals with whether California's Proposition 8 -- a voter-approved ballot initiative defining marriage as being between a man and a woman -- is constitutional. The Ninth Circuit Court of Appeals previously ruled that it is not, finding that it violated the Equal Protection Clause of the 14th Amendment.

If the Supreme Court were to affirm the Ninth Circuit's decision -- and thus bar states from limiting marriage to heterosexual couples -- it would effectively make gay marriage legal in all 50 states.

But there is another, more political option. The justices could rule that supporters of Proposition 8 don't have legal standing to fight the case in court, and simply dismiss it on those grounds. This would have the practical effect of keeping gay marriage legal in California without touching the merits of the Ninth Circuit's decision or creating implications for other states.

Again, it's impossible to predict where justices will come down based on oral arguments, but their questions did at least suggest they were heavily weighing the idea of dismissing the case on grounds of standing.

In the second case, United States v. Windsor, the Supreme Court is asked to consider the constitutionality of a provision in the 1996 Defense of Marriage Act, which defines marriage as being between a man and woman for the purposes of federal laws such as tax policy.

Here, too, there are jurisdictional and standing issues that provide justices an escape hatch if they want to avoid ruling on the merits. But even if they decide to strike down DOMA, there could be a way to finesse the issue. The justices could rule that on federalist grounds, the federal government doesn't have the ability to interfere with state laws regarding gay marriage.

The overarching signal would be that the court isn't going to interfere if states want to define marriage as between a man and a woman, but it won't allow the federal government to define it as such at the federal level, thus undermining those states that have chosen to recognize same-sex marriage.

And as long as the Supreme Court doesn't overturn a separate provision of DOMA, states that have defined marriage as between a man and a woman won't have to recognize out-of-state gay marriages.

This approach could be seen as a way of preventing another outcome like Roe v. Wade, in which the Supreme Court created a constitutional right to abortion and short-circuited states' ability to craft their own abortion laws.

Under such a scenario, the United States will most likely evolve into a nation where gay marriage is eventually recognized in most -- if not all -- places. As it should be. But the social battle will be fought at the state level.

Philip Klein (pklein@washingtonexaminer.com) is a senior editorial writer for The Washington Examiner. Follow him on Twitter at @philipaklein.

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