December 7, 2012 (TSR) – The US supreme court will take up the issue of same-sex marriage for the first time, agreeing to hear two cases that could decide whether gay and lesbian Americans have the same constitutional right to marry as heterosexuals.
In a long-awaited announcement on Friday, the justices confirmed that they will review California‘s Proposition 8 ban on gay marriage. They will also decide on the constitutionality of a provision in the Defence of Marriage Act (Doma), Section 3, that limits health, pension and tax benefits to heterosexual couples by defining marriage solely as an act between one man and one woman.
The hearings are expected to take place in March, with the court delivering its rulings by the end of June.
The Doma case was brought by Edith Windsor, an 83-year-old widow who was forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, in 2009 because their marriage was not recognized under federal law.
After the justices made their announcement, Windsor told the Guardian she was “delirious with joy”.
“I think Doma is wrong for all of the various ways in which it discriminates against same sex married couples and against gays all together,” Windsor said. “It’s enormously satisfying and fulfilling and exciting to be where we are now.”
Spyer, she said, would have been proud of her achievement. “I think she’d be so proud and happy and just so pleased at how far we have come. It’s a culmination of an engagement that happened between us in 1967 when we didn’t dream that we’d be able to marry.”
Four lower federal courts and two appeals courts have ruled against Doma. In Windsor’s case, the second circuit court of appeals in October upheld a lower court ruling that Section 3 of Doma was unconstitutional.
Windsor is being represented by the American Civil Liberties Union and attorneys from Paul, Weiss, Rifkind, Wharton & Garrison.
James Esseks, director of the ACLU lesbian gay bisexual and transgender project, said: “The four decades that Edie Windsor spent with her late spouse are a testament to the words ‘in sickness and in health, till death do us par. After building their lives together and getting married, it is unfair for the federal government to treat them as though they were legal strangers.”
The justices will also review California‘s Proposition 8 gay marriage ban, which was approved by voters in November 2008, five months after a state supreme court ruling that legalised same sex unions.
In February, the San Francisco-based US ninth circuit court of appeals found Prop 8 to be unconstitutional, ruling that the state of California could not take away the right to same-sex marriage after previously allowing it. But the judges ruled narrowly in a way that only affected California and not the rest of the country.
The US supreme court will hear arguments on the merits of that ruling. They will have the option of upholding that ruling in the same narrow fashion, applying it only to California. Or, which seems less likely, they could recognise a federal right to marriage equality.
In agreeing to take on the two cases, the supreme court is setting itself up to tackle an issue that has traditionally divided America, but which has seen a significant shift in public opinion over the last decade.
According to polling by Gallup, 53% of Americans now believe that same-sex marriage should be recognised by the law as valid, and extended the same rights as traditional marriage.
In 1996, when Doma was enacted, just 27% agreed that gay unions should be seen on a par with heterosexual ones. More than two-thirds were against gay marriage, according to Gallup, compared to 46% now.
Barack Obama came out in favour of same-sex unions earlier this year – he had previously said his views on the matter were evolving.
In November, voters in Washington, Maryland and Maine became the first to approve gay marriage at the ballot box. It adds to a growing list of states recognising same-sex unions, including New Hampshire, Iowa, Connecticut, Massachusetts, New Hampshire, New York and Vermont, as well as the District of Columbia.
But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May.
At federal level, Doma deprives homosexual couples who are married in any of the states of tax, healthcare and pension benefits. In addition, it means that same sex couples do not enjoy the same immigration rights granted to the spouses of heterosexual US citizens.
The Obama administration decided last year to stop defending Doma in court, leaving it to the Republicans under the leadership of House speaker John Boehner to prop up the law. But the White House has failed to propose striking the legislation down through Congress, instead encouraging the supreme court to rule on the issue.
On Twitter, Nanci Pelosi, the House Democratic leader, said: “I’m confident Supreme Court will discard Doma and Prop 8 into the dustbin of history. Let’s get this over with and on to the future!”
Campaigners on both sides of the debate welcome the justices’ decision.
Evan Wolfson, founder and president of pressure group Freedom to Marry, said: “By agreeing to hear a case against the so-called Defence of Marriage Act, the court can now move swiftly to affirm what 10 federal rulings have already said: [that] Doma’s ‘gay exception’ to how the federal government treats married couples violates the constitution and must fall.
“When it comes to the whole federal safety net that accompanies marriage – access to social security survivorship, health coverage, family leave, fair tax treatment, family immigration, and over 1000 other protections and responsibilities – couples who are legally married in the states should be treated by the federal government as what they are: married.”
Bryan Fischer, of the American Family Association, a body opposed to same-sex marriage, said: “It is good that the supreme court has taken up these issues, what is needed is clarity at a national level. I’m optimistic that the supreme court will rule in favour of natural marriage, that is one man, one woman.”
“There is a huge risk, obviously, but with an issue of this magnitude, I’m confident the supreme court will exercise restraint.”
But he added that overturning Doma in the supreme court would represent “the end of democracy in the US.”
BACKGROUND
The U.S. Defense of Marriage Act (DOMA) is the federal law that defines marriage as a union between a man and a woman.
Supporters of same-sex marriage are optimistic about the chances the court will strike down DOMA, making all marriages equal in the eyes of federal law. It would be an historic ruling, and one of the most significant civil-rights decisions in the court’s history. The challenge to California’s Proposition 8 goes a step further, providing the court with an opening to declare that there is a constitutional right to same-sex marriage. The justices will consider whether the 14th Amendment bars California from enforcing a law that prevents same-sex couples from marrying.
The justices did not offer any explanation of why they decided to take the cases. Oral arguments are expected in the spring, with a ruling to follow in the summer. The court traditionally holds its most important decisions until the last day of its term, sometime in June or July.
Justice Anthony Kennedy is seen as likely to side with the court’s liberal bloc on DOMA, but his views on Proposition 8 are harder to predict.
Striking down only DOMA, and leaving Proposition 8 intact, would not recognize a right to same-sex marriage, but would leave the issue to the states.
Several states have already begun to recognize same-sex marriage and the success of marriage-equality ballot measures on Election Day was seen as a watershed moment, as opponents of same-sex marriage had long argued that popular opinion was on their side.
