by Stephanie Pappas, National Post/Associated Press, LiveScience
March 26, 2013 (TSR-Agencies) – The Supreme Court is wading into the fight over same-sex marriage at a time when public opinion is shifting rapidly in favor of permitting gay and lesbian couples to wed, but 40 states don’t allow it.
The court’s first major examination of gay rights in 10 years begins Tuesday with a hearing on California’s ban on same-sex marriage. On Wednesday, the justices will consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans.
People have been waiting in line – even through light snow – since Thursday for coveted seats for the argument over California’s Proposition 8.
The two California couples challenging the voter-approved ban on same-sex marriage in the nation’s largest state are in Washington for the argument and are urging the justices to strike down not just the California provision, but constitutional amendments and statutes in every state that define marriage as the union of a man and a woman.
They envision the 21st century equivalent of the court’s 1967 decision in Loving v. Virginia that struck down state bans on interracial marriages.
The Obama administration has weighed in on behalf of the challengers, following President Barack Obama’s declaration of support for same-sex marriage last year and his invocation of gay rights at his inauguration in January.
Supporters of Proposition 8 say the court should respect the verdict of California voters who approved the ban in 2008 and let the fast-changing politics of gay marriage evolve on their own, through ballot measures and legislative action, not judicial decrees.
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
Thirty states ban same-sex marriage in their state constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue.
Polls have shown increasing support in the country for gay marriage. According to a Pew Research Center poll conducted in mid-March, 49 percent of Americans now favor allowing gays and lesbians to marry legally, with 44 percent opposed.
The California case is being argued 10 years to the day after the court took up a challenge to Texas’ anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults.
Justice Anthony Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Antonin Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage.
Kennedy’s decision is widely cited in the briefs in support of same-sex unions.
The court has several options for its eventual ruling, which is not expected before late June. In addition to upholding the ban and invalidating prohibitions everywhere, the justices could endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state. They also could issue a broader ruling that would apply to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions or become domestic partners and have all the benefits of marriage but cannot be married.
One other possibility is a ruling that says nothing about marriage. California’s top elected officials, Gov. Jerry Brown and Attorney General Kamala Harris, are refusing to defend Proposition 8, and there is a question about whether the Proposition 8 supporters have the right, or legal standing, to defend the measure in court. If the justices decide they do not, the case would end without a high court ruling about marriage, although legal experts widely believe same-sex marriages would quickly resume in California.
The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court.
“49 percent of Americans now favor allowing gays and lesbians
to marry legally”
Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California.
The high-profile case has brought together onetime Supreme Court opponents. Republican Theodore Olson and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favor of George W. Bush.
Opposing them is Charles Cooper, Olson’s onetime colleague at the Justice Department in the Reagan administration.
The case is Hollingsworth v. Perry, 12-144.
5 Key facts
On Tuesday and Wednesday, the Supreme Court will hear two cases dealing with same-sex marriage: Hollingsworth v. Perry, a review of California’s Proposition 8, which banned same-sex marriage in the state, and United States v. Windsor, which challenges the Defense of Marriage Act (DOMA), a law preventing the federal government from recognizing same-sex marriages performed by the states.
The outcomes of these cases could change the status of same-sex marriage substantially, or the Court could rule narrowly, altering little in the current marriage landscape. Here are the key facts about the cases and what’s behind them.
1. Challenges in California
In May 2008, the California Supreme Court ruled that marriage is a fundamental right under the state’s constitution, effectively legalizing same-sex marriage in the state. In November 2008, however, California voters approved Proposition 8, which amended the state constitution to state that only marriage “between a man and a woman is valid or recognized in California.” [Same-Sex Marriage Gains Acceptance (Infographic)]
The Supreme Court case Hollingsworth v. Perry is the culmination of a string of legal challenges against Proposition 8. A federal district court judge in San Francisco overturned the proposition in 2010, but supporters appealed to the Ninth Circuit Court of Appeals, which paused same-sex marriages in the state pending the appeal. The Ninth Circuit court then ruled that in approving Proposition 8, California voters had unfairly targeted a minority group and removed a right they once possessed, violating the Equal Protection Cause of the federal Constitution.
Nevertheless, same-sex marriages are still on hold in California, as Prop 8 proponents appeal the case to the Supreme Court, hoping to get the Ninth Circuit Court decision reversed. The justices will hear an hour of oral arguments in the case on Tuesday morning (March 26).
2. The case against DOMA
United States v. Windsor, on the other hand, deals with federal law. In 1996, Congress passed the Defense of Marriage Act, or DOMA, which prevents same-sex married couples from receiving federal benefits, such as the ability to jointly file taxes or collect Social Security survivor’s benefits.
The Supreme Court will consider whether denying these benefits violates the Equal Protection clause of the U.S. Constitution. This clause, part of the 14th Amendment, says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The courts have held that equal protection requirements apply to the federal government as well.
3. The people behind the cases
The “Windsor” in United States v. Windsor is Edith Windsor, who married Thea Spyer in Toronto, where same-sex marriage is legal, in 2007. The two New York residents had been together for 40 years. In 2009, Spyer died. New York recognized the two women’s union, but the federal government, because of DOMA, did not. Windsor was thus required to pay more than $363,000 in federal estate taxes on her wife’s estate, a payment not required by couples whose marriages are legally recognized by the federal government. [5 Myths About Gay People Debunked]
In Perry v. Hollingsworth, Kristin Perry of California, who was denied a marriage license in 2009 in Alameda County, Calif., is the prosecutor; Dennis Hollingsworth, head of ProtectMarriage.com, a group formed to promote Proposition 8, is the defendant.
4. Possible outcomes: Hollingsworth v. Perry
In dealing with Proposition 8, the Supreme Court justices have a wide range of options. They could rule that Hollingsworth and his organization don’t have “standing” to file a lawsuit challenging earlier decisions about the proposition, because same-sex marriage would not threaten them personally. That would allow same-sex marriage to stand in California without changing policy elsewhere. The justices might also keep their ruling narrow, allowing earlier decisions to overthrow Proposition 8 to stand on the basis that it was a voter initiative that took away a right gay and lesbian citizens in California already had. That ruling would re-open same-sex marriage in California, but not speak to marriage rights in other states.
Or the Court could tackle same-sex marriage broadly with Proposition 8 as its impetus, deciding whether same-sex couples have a fundamental right to marry. A final possibility, urged by the federal government, would be to strike down Proposition 8 based on the fact that California allows same-sex civil unions but not marriage. According to a brief filed by the federal government, this sets up two “separate but equal” institutions, violating Constitutional promises of equal protection. A ruling striking down Proposition 8 on those grounds would affect seven other states that permit same-sex civil unions and ban marriage.
5. Possible outcomes: United States v. Windsor
The question of standing, or who has the right to argue a case in front of the Court, comes into play in United States v. Windsor as well. The Obama administration announced in 2011 that it would no longer be defending DOMA in court, believing it to be an unconstitutional law. Republicans in the House of Representatives formed a group called the Bipartisan Legal Advisory Group (BLAG) to step in and defend the law in the administration’s stead. The Court will have to determine if BLAG has standing to defend DOMA before hearing other arguments. If the justices decide BLAG doesn’t have standing, the same-sex marriage case returns to the lower courts and would likely wind its way back to the Supreme Court eventually.
If the Court decides not to dismiss the case, they could uphold DOMA, continuing the status quo of state marriages remaining unrecognized federally. If the law is struck down, the Court could write the decision narrowly, opening federal benefits to married gay couples but not broadly addressing the question of marriage as a fundamental right. Or the justices could address whether prohibiting same-sex marriage violates the Equal Protection Clause, recognizing a constitution right to same-sex marriage.
The justice’s rulings are expected in late June.
