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December 12, 2012

Analysis: Is Full Marriage Equality On The Horizon?

Edith Windsor, 83 a litigant in United States v. Windsor

With voter approval of Proposition 8, was it permissible to take away the right to marry? Does the Defense of Marriage Act violate the Fifth Amendment guarantee of equal protection under the law

By Roy Steele


 I remember vividly, nearly twenty years ago, getting off the New York city subway at Herald Square, and trudging up the concrete stairs to the newsstand on the corner of 34th Street and Broadway. Armed with the New York Times and New York Post, I stopped for a coffee light and sweet to satisfy my caffeine fix, before crossing the street to take the elevator to the 14th floor, and start my day as a financial analyst at the longest running show on Broadway.

I remember this day so clearly, because while I was reading the New York Times - I read about a decision by the Supreme Court of Hawai’i. In the lawsuit Baehr v. Miike, the Court found that denying a marriage license to same-sex couples was discrimination under the state’s equal protection clause. It was shocking, scary, exciting, and a huge surprise all at the same time.

Twenty years ago it was a big deal to work for a company that had a non-discrimination clause that included LGBT employees. The notion that a same-sex couple could get married was so far fetched, and a pipe dream, that we never considered marriage as a remote possibility.

The state legislature in Hawai’i responded to the court ruling by placing a referendum on the ballot to define marriage as a union of a man and woman. The state created a program they called reciprocal beneficiary registration, that was similar to a domestic partnership registry.

Fast forward to today, when the US Supreme Court has agreed to hear oral arguments in two marriage equality lawsuits. With marriage equality a reality in nine states today, the seismic shift toward marriage equality is stunning.

In Hollingsworth v. Perry (docket 12-144), and United States v. Windsor (docket 12-307), the Court will be considering whether a state or Congress has the right to enact legislation that expressly forbids same-sex marriage, in order to express a moral disapproval of same-sex marriage, or to reinforce the majority view that only a man and a woman can wed. In California the passage of Proposition 8 took away the right of same-sex couples to marry, while the Defense of Marriage Act (DOMA) was an act of Congress that defined marriage as opposite sex only. Congress also inserted the federal government into a matter that was traditionally regulated by state law.

The primary question in Hollingsworth v. Perry is the constitutionality of Proposition 8, and whether it was permissible to take away the right to marry. In United States v. Windsor, the Court will decide if DOMA is unconstitutional, and violates the Fifth Amendment's guarantee of equal protection under the law.

In both cases the Justices added a question for the litigants to consider, and they both involve whether the petitioner's have standing to argue these cases. Standing basically means that the petitioners have a legal right to be in court.

In the Prop. 8 case, Governor Arnold Schwarzenegger and Attorney General Jerry Brown believed that the law was unconstitutional, and they refused to defend passage of the ballot measure. In the DOMA case, President Obama and Attorney General Eric Holder decided that the law was unconstitutional, and they refused to defend it in court. The leadership in the House of Representatives
(House Bipartisan Legal Advisory Group) decided to defend the law.

I honestly thought that Hollingsworth v. Perry, the Proposition 8 marriage equality case that was masterfully argued in San Francisco by Constitutional law experts Theodore B. Olson and David Boies, would be denied the writ of certiorari (cert). If that happened, the Court would have reaffirmed the lower court rulings, sending the case back to the Ninth Circuit Court of Appeals, which would have immediately reinstated same-sex marriage in California.

In the January 18th, 2012 issue of the New Yorker, Margaret Talbot wrote about Hollingsworth v. Perry.

If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation.
When the Court of Appeals ruled that DOMA is unconstitutional in the “Windsor” case, the conservative Republican chief judge of the Second Circuit, Dennis Jacobs, wrote:
In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

It is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate.

BLAG (House Bipartisan Legal Advisory Group) argues that, unlike protected classes, homosexuals have not "suffered discrimination for longer than history has been recorded." But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a "history of discrimination."

The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.
Any ruling by the Supreme Court will not result in marriage equality being the law of the land. At best, Proposition 8 and DOMA will be found to be unconstitutional. If the Court rejects the pro-marriage equality arguments and rules against us, things will remain status quo. I don’t see any scenario where we will lose anything. Momentum will still be on our side, and we will return to fighting for marriage equality on a state by state basis.

Experts say that oral arguments will take place in March 2013, and the decision will be announced in June of 2013. I feel like I have to hold my breath for the next six months, as the anticipation is nerve wracking.

Like twenty years ago - it’s shocking, scary, exciting, and a huge surprise all at the same time, that we’ve gotten this far so fast. And nothing is going to stop us now.



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