Tomorrow the US Supreme Court will hear oral arguments on the issue of same-sex marriage. Of course, what the court usually looks are not broad questions but more narrowly focused ones that can have broad implications, and understanding what those questions are enables us to better understand the oral arguments. Lyle Denniston at SCOTUSblog is my go-to person for explaining the background to cases and he has written about the questions that will be at play.

One question is who gets to decide the issue of allowing same-sex marriages. Is it the states so that the issue has to be resolved by state courts and state legislative mechanisms? Or is it a federal that properly falls within the purview of federal courts and the Supreme Court? The former was the position taken by the Sixth Circuit Court of Appeals in opposition to other appeals courts and those four cases are the ones being discussed tomorrow.

The other question is the nature of the right that is at issue. Is same-sex marriage a new right that is being created or is an existing right being expanded to cover a previously excluded group?

Gay and lesbian couples insist that they are not asking the Court to declare, for the first time ever, that gays and lesbians have a right to marry — that is, a new and very specific right to marry the person of one’s choice, when that person is of the same sex.

Rather, they contend that there is an existing right to marry, well established in every state, and they simply want equal access to it. It is their exclusion from a right now open to opposite-sex couples that they argue denies them legal equality and due process under the Fourteenth Amendment.
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Many lawyers for states, in defense of their bans, have made a contrasting argument. They contend that gays and lesbians are, in fact, asking the Court to create a brand-new constitutional right to marry a person of the same sex.

There is another aspect of this right.

Of course, the Court is examining two constitutional claims to a right to be treated equality: equal access to marriage in the first instance for unwed gay and lesbian couples (an issue in two of the cases before the Justices), and equal recognition of same-sex marriages already performed in another state (at issue in one of the marriage cases and in the two cases that deal only with recognition).

If the couples win on the first point, then equality would be mandated nationwide, and recognition would seem to lose its separate significance. It is possible that the Court, if it were to examine the recognition issue wholly apart from its obvious link to marriage access, might find it fairly easy to assure equality in recognition. That, in effect, is what it required the federal government to do when, in the Windsor decision, it opened federal marital benefits to already married same-sex couples as a matter of constitutional equality.

The final issue is what is the appropriate standard to be used in judging the issues.

When the Supreme Court confronts a claim that a constitutional right has been violated, and the right has been identified, it ordinarily has to decide what standard to use in judging whether a law or government policy violates that right.

There are various levels of such a test, ranging from the easiest to meet to the hardest. When the right involves a claim of equality, a law or policy that is said to violate that right is judged by one of three tests: the “rational basis” test, which is very easy to meet, and can be satisfied if there is any reasonable explanation for its passage; the “heightened scrutiny” test, which is not as easy to meet because a law or policy must be shown to have served an important public objective, and the “strict scrutiny” test, which is so demanding that a policy can almost never survive it; a policy put to that test must serve a compelling government interest, and be narrowly crafted to serve that interest. Race discrimination, for example, is always judged by that tough standard.

It is one of the truly strange facts about the Supreme Court’s modern history of ruling on gay rights that it has never settled on which of those three tests, or which variation of one of them, it actually applies in judging a given law or policy. It has sometimes hinted that it is using some more demanding version of the low-level rational basis test, but has not said so explicitly.

The court has scheduled 150 minutes of oral arguments instead of the usual 60 minutes, suggesting that they expect a lot of intricate legal issues to be discussed.