On Monday morning, the U.S. Supreme Court is scheduled to release one or more opinions from its current term with the remaining opinions issued by the end of the month. The pending opinions include rulings on both Proposition 8 on March 26th (Hollingsworth v. Perry), and the Defense of Marriage Act (U.S. v. Windsor) on March 27th, 2013. Hollingsworth v. Perry was a challenge to Proposition 8, the initiative banning same-sex marriage in California, while Windsor v. United States was a challenge to the Defense of Marriage Act, the 1996 law that denies federal marriage rights to same-sex couples. Both cases are significant in the ways they address same-sex marriage.
Following a California Supreme Court decision that legalized same-sex marriage in 2008, 52% of California’s voters passed a ballot initiative banning same-sex marriage. Marriage licenses were placed on hold while the case of Hollingsworth v. Perry worked its way up to the 9th Circuit Court of Appeals, where the proposition was ruled unconstitutional before an appeal was filed to the United States Supreme Court by the proponents of Proposition 8.
Even in states where gay couples can get married, DOMA denies them federal benefits such as the ability to file joint tax returns, Social Security benefits, immigration or military benefits for their same-sex spouse or partner. A same-sex spouse can also still be deported, even in a state that recognizes same-sex marriage. Edith Windsor, now 83 years old, married her partner of more than four decades, Thea Spyer, in Canada in 2007. When Spyer died in 2009, Windsor received an inheritance tax bill of over $360,000, which she would not have owed if the government recognized her marriage. Numerous courts, including two federal appeals courts and a San Francisco judge, have invalidated DOMA. The Obama administration also argued that DOMA is unconstitutional and both Bill Clinton, who signed the Defense of Marriage Act in 1996, and DOMA author and former congressman Bob Barr have also rallied to have DOMA overturned.
Section 3 of the Act defines marriage as being between a man and a woman; therefore, same-sex couples who are legally married in several states and the District of Columbia are denied the benefits of more than a thousand federal statutes and programs that are otherwise available to other married couples. DOMA has already been found unconstitutional by numerous courts, including two federal appeals courts and a San Francisco judge. The courts have found that it is unconstitutional to deny federal benefits to same-sex couples that permit gay marriage. They also note that a decision can be reached invalidating DOMA without addressing the question of whether same-sex couples have a constitutional right to marry, deferring to the states in making that decision.
The big question relates to how our nine Supreme Court justices will vote on the cases. It takes five votes to reach a decision. Four justices, Ginsburg, Breyer, Sotomayor and Kagan are expected to vote in favor of overturning DOMA and marriage equality while conservative Justices Scalia, Thomas, and Alito are expected to uphold the law. Kennedy, a libertarian conservative, is expected to be the swing vote. I would not rule out Chief Justice Roberts, however, who may surprise all of us. Although he is a conservative, Roberts’ cousin, a gay rights activist and lesbian hoping to marry her partner of four years, was present at one of the hearings. He also dared to vote in favor of ObamaCare in contrast with his conservative brethren and provided pro bono assistance in the Romer case. Who knows? He may even offer the majority opinion in a 6-3 decision invalidating DOMA.
Is the past an indication of what we may expect? The most significant previous Supreme Court decision on gay rights, Lawrence v. Texas,a 2003 ruling that struck down sodomy laws — was decided on a 6-3 vote. Romer v. Evans, the 1996 ruling that overturned Colorado’s Amendment 2, a ballot measure that prevented gay people from being recognized as a protected class by any government entity, was also decided on a 6-3 vote. Could this be shades of Proposition 8? I think so. Kennedy wrote the Romer decision in 1996, which overruled the Colorado state initiative that repealed non-discrimination ordinances. The Ninth Circuit decision on Proposition 8 heavily relied on Kennedy’s reasoning in Romer in reaching their decision.
It is believed that Kennedy will side with the liberals in these cases despite questions raised regarding same-sex marriage as a “fundamental right” but how far will the Supremes go in these cases? Former U.S. Supreme Court Justice John Paul Stevens predicted that the Court will dismiss the Yes on 8 appeal of Proposition 8 on procedural grounds, and find the Defense of Marriage Act (DOMA) unconstitutional. Both decisions, however, would be a victory for same-sex marriage as dismissing Proposition 8 would allow resumption of marriage by same-sex couples in California (although it would not affect those outside of the state).
Both cases are significant as they relate to same-sex marriage rights but both provide for potentially different outcomes. Based upon oral arguments and the questions raised by the Justices, I believe there is a greater likelihood that the Supreme Court will strike down the Defense of Marriage Act, which could require the federal government to recognize legal same-sex marriages in those states that recognize them but not require all states to do so.
Proposition 8, however, could be decided in a variety of ways…including not reaching a decision. They could deny standing to Proposition 8 supporters, uphold Proposition 8 and deny marriage to California couples, sustain the Ninth Circuit decision that overruled Proposition 8 but limit the decision to California only, overrule Proposition 8 to extend same-sex marriage to the nine states or extend marriage equality to all 50 states.
I do not believe that standing will be an issue; in the absence of government intervention it would seem a bit absurd to not allow a party to step in to fight for their position. Given the current climate and support for same-sex marriage and LGBT rights as well as the absence of documented proof of harm in the case, I do not find it likely that the Court will uphold Proposition 8. I also find it highly unlikely that the Court would take the unusual step of extending rights to the nine states that allowed for same-sex marriage or all 50 states when limiting the ruling to California allows for a more narrow definition as it would not immediately allow gay couples to marry around the country. Therefore, although the Supremes could certainly choose to dismiss the case, they may also alternatively apply the Romer rationale in finding the Proposition unconstitutional on narrow grounds if they choose to strike down Proposition 8. This would be consistent with the 9th Circuit Court of Appeals, which also struck down Proposition 8 in a narrow ruling while steering clear of broader legal issues. This does not address same-sex marriage but, rather, states that the law was unconstitutional because it stripped away the previous right of same-sex couples to marry in California.
A Washington Post-ABC News Poll from March, 2013 found that 58% of Americans now believe it should be legal for gay and lesbian couples to get married; 36% said it should be illegal. Just a decade ago in 2003, only 37% favored same-sex nuptials while 55% were opposed to them. I, like many others, anxiously await the Court’s decision in each of these significant cases with hope that our concept of equality will continue to evolve.
Author – Amy Stoody King