5 Things You Need to Know About Gay Marriage and the Supreme Court
This Friday, the United States Supreme Court is expected to take up several gay marriage-related cases that could in time see parts of the federal Defense of Marriage Act struck down and California’s Proposition 8 nixed. Here are five things you need to know about those cases.
1) What Are the Gay Marriage Cases Before the Supreme Court? — Perhaps the most high profiled case up for judgement is Hollingsworth v. Perry (formerly Perry v. Brown and Perry v. Schwarzenegger), this of course being the case involving California’s Proposition 8, the 2008 constitutional amendment that voters used to define away gay marriage in California.
In addition to this, there are as many as eight Defense of Marriage Act (DOMA) cases, among them Golinski v. United States Office of Personnel Management, where Golinski, a government employee, is suing the federal government to be able to add her same-sex spouse to her health insurance. Her case is backed by the Obama administration who in February 2011 found that after review it could no longer defend as constitutional Section 3 of the Defense of Marriage Act. Since then, the Republican-led House has pumped over $1.5 million of taxpayer money into DOMA cases to try to defend the law.
The latter case, Windsor v. United States, saw the Second Circuit Court of Appeals agree with a lower court and rule in favor of senior citizen Edith Windsor that DOMA’s denial of federal benefits is unconstitutional. In so doing, the appeals court used “intermediate scrutiny” as its test level for whether the law should stand. This was the first time that any gay rights case has been given the medium review level, and thus it will be interesting to see how the Supreme Court deals with the case. Some analysts have predicted that the Windsor v. United States case could in theory lead to DOMA being struck down and, as a result, every state law banning gay marriage being overturned.
Lastly, the SCOTUS will also be taking up a case dealing with Arizona’s denial of domestic partnership benefits to state employees.
It is prudent to note that it is possible for the SCOTUS to choose to take up all, none, or only a certain number of the above cases. The court may choose to defer ruling on certain cases because those it does take up may have wider implications for other cases.
2) Has the Supreme Court Ever Taken Up a DOMA Challenge Before? — While DOMA was voted through Congress by an overwhelming bipartisan majority and then signed by President Bill Clinton, and while several lower court and appeals courts have struck down DOMA’s Section 3 that denies same-sex couples federal benefits, the Supreme Court has never before taken on a direct challenge to the law.
Similarly, the Supreme Court has never before ruled on whether it is lawful for the voting public, corralled by animus, to define away a right to same-sex marriage by amending the state’s constitution. As such, these are important test cases for how the Supreme Court currently judges same-sex marriage and its place in American law.
3) Which Justices Should We Watch Out For? — As Care2 blogger and lawyer Jessica Pieklo has noted before, analysts expect that Justice Kennedy will be the deciding vote in the Proposition 8 case in particular.
Kennedy wrote the Court’s opinions in the Supreme Court’s most important gay rights decisions Romer v. Evans (1996) which struck down a Colorado voter enacted law that specifically and solely barred Colorado from adopting laws to ban discrimination on grounds of sexual orientation; and Lawrence v. Texas (2003), which famously overturned a law that specifically made sodomy between same-sex couples a crime.
With these two opinions in the bag, so to speak, we might conclude that Kennedy’s opinion should be one in favor of striking down Proposition 8. But not so fast. Kennedy, writing in Lawrence, specifically said that whether it was lawful for a state to choose to limit marriage to opposite-sex couples remains an open question. He is, of course, also rather conservative in his decision making and therefore guessing how he will greet the Proposition 8 case is rather difficult.
However, it has been noted that the 9th Circuit Court of Appeals, in ruling to uphold Judge Vaughn Walker’s landmark 2010 ruling, did through their unanimous opinion state: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for ‘laws of this sort.’”
This opinion, based on Judge Walker’s 128 page dissection of arguments against gay marriage and his findings of fact, seemed particularly geared to appeal to Kennedy’s framing of Romer with which Proposition 8 has some loose, though not overriding, parallels.
Another factor we may consider not in the Proposition 8 case but rather in those dealing with DOMA is that Justice Elena Kagan, previously a top appellate lawyer in the Obama administration, may choose to recuse herself in cases where the Obama administration is advocating on behalf of plaintiffs. This may also affect which cases the Court decides to take up.
One last factor that may see some of the conservative members of the Court surprise us by deciding against DOMA is that broadly speaking, marriage, until DOMA, was always decided at the state level. DOMA in fact impinges on a state determining what rights it may give to same-sex couples — for example, for purposes of tax and for certain benefits. For this reason, those justices with a mind toward state self-governance may see the DOMA cases not in terms of gay rights but rather as a question of whether DOMA can legitimately limit state autonomy.
4) Will Recent Success At the Ballot Help In These Cases? — While the SCOTUS should not be basing their decisions on the will of the majority, we do know that Justice Scalia, who opposes extending the equal protection clause to encompass any other minority apart from those disenfranchised because of race, has previously cited public opinion against gay marriage.
For this reason, recent successes at the ballot in Maryland, Washington and Maine, which broke a 30 plus losing streak for gay marriage rights, serves to highlight what is by most standards a definitive, if not yet solidified, turning point in majority opinion on the issue.
5) Should The Supreme Court Agree to Hear All the Cases? – This might sound like an obvious question, and where the Defense of Marriage Act is concerned we can broadly say that, yes, we wish for those cases to be taken up and the challenged parts of DOMA to be struck down.
The Proposition 8 case has caused quite some debate, however.
There is an opinion, also expressed by the same-sex couples’ lawyers David Boies and Ted Olson, that it might be better were the Supreme Court to refuse to hear the Proposition 8 case, allowing District Judge Vaughn Walker’s ruling against Proposition 8 to stand, the amendment to be struck down and the judgment to be confined solely to California.
Advocates have highlighted this because it would appear that if SCOTUS were to take up the Proposition 8 case, they would be faced with a wider question: if a constitutional right to same-sex marriage does exist. There is a lot be gained from having the Supreme Court rule on this question, but also a lot could be lost, namely the contention that equal protection should apply in this case and all cases like it.
As to what the likely outcome is, advocates agree that there is a strong case against the Constitutionality of DOMA Section 3 but would expect the SCOTUS to rule narrowly and tailor each response to the specific questions raised by each of the DOMA cases rather than issuing a wider ranging opinion that would strike down DOMA in one blow. Hearings on the DOMA cases are expected to extend well into the middle of next year.
In terms of the Arizona case, predictions are the Supreme Court will deny certiorari and let the lower court judgment stand. Were the court to take up the Arizona case, it might signal the SCOTUS is about to be more ambitious with the questions it will tackle.
In terms of the Proposition 8 case, it seems possible the Court may also deny certiorari, allowing the lower court ruling to stand and therein once again legalizing same-sex marriage in California. If that were to happen, marriage licenses could be issued to same-sex couples within weeks if not days. It is likely to be early next week before we know whether the Court has decided to grant a hearing to the Arizona and Proposition 8 cases.
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