On Tuesday, March 26th, the Supreme Court of the United States heard arguments for Prop 8, a Californian proposition passed in 2008 banning gay marriage. The very next day the Supreme Court heard arguments for The Defense of Marriage Act or DOMA, an act passed in 1996 defining marriage as heterosexual or as between a man and a woman. Both high-profile cases mark historic moments for the gay rights movement and for the nation as a whole as people tuned in to get a glimpse of which way the high court of the land may be leaning. No decision has been made, but there are indications of which way the court may be leaning in either case.
Prop 8 was passed in California back in 2008 through a ballot. The result of the intense campaign by either side was that Californians voted yes on the proposition, though by a small margin, and Section 7.5 was added to the Declaration of Rights in the California Constitution defining the marriage between man and woman as the only recognized form of marriage. The passing of the proposition sparked immediate protests and legal challenges, especially since Prop. 8 was a direct response to the ruling of the California Supreme Court which upheld same-sex marriage. With a small margin, Prop. 8 overturned the court’s earlier ruling.
In August 2010, District Court Judge Vaughn Walker overturned Prop. 8 in Perry v Schwarzenegger and deemed the prop unconstitutional based on its violation of the Equal Protection Clause of the United States Constitution. In February 2012 the Court of Appeals upheld Judge Walker’s decision which resulted in proponents of Prop. 8 filing for review with the United States Supreme Court, arguments for which were heard earlier this week. Ruling is expected in June.
Defense of Marriage Act or DOMA
The Defense of Marriage Act, or DOMA was signed into law September 1996 after passing both chambers of Congress with a large majority. On a federal level it defined marriage as between a man and a woman and restricted benefits from inheritance, taxation, etc to that definition therefore denying them to same-sex marriages. It also allowed for interstate recognition of only opposite sex-marriages so that a same-sex couple married in a state that allowed same-sex marriages would not have their marriage recognized by other states that did not allow for same-sex marriages.
Many of the politicians that once supported the act have now spoken against it, with even President Clinton who signed the bill, now changing his stance. President Obama whose Department of Justice is charged with defending DOMA in court also changed stances when in February 2011 he instructed the Department of Justice to no longer defend DOMA in the courts. Congress, specifically the House of Representatives has now stepped in to fill that position.
On November 2010, after having her inheritance from her same-sex partner taxed as if their marriage was not recognized, suit was filed in Windsor v United States. On June 2012, Judge Barbara Jones found DOMA unconstitutional and the case has been taken to the Supreme Court with arguments heard this past week. DOMA is being defended by Paul Clement on behalf of BLAG or the Bipartisan Legal Defense Group.
Speculation on Supreme Court Decision
It is likely that Prop. 8 will be voided by the Supreme Court, but there are also indications that the court is reluctant to issue a broad ruling that would impact other states. The court seemed divided with all eyes turning on swing-vote Justice Kennedy who seemed sympathetic to the cause of same-sex marriage, but also reluctant to impose on other state rights. With conservative justices Scalia and Roberts openly calling for caution against redefining traditional marriage.
If the justices are split–as all speculation points to–it is likely that what will happen is a victory for California, but only a small step for the rest of the nation. Whether through rejecting the case that was brought before them, or by issuing a ruling, the lower court’s decision against Prop. 8 will be upheld and therefore the ban will be lifted in California. However, they may be unlikely to go any further and issue a broad ruling redefining marriage.
So while it will be a clear victory for marriage equality, there will still be more work to be done.
DOMA on the other hand seems to be facing harsher scrutiny by the Supreme Court with questions being raised on the power of the federal government to impose regulation of marriage on the states and denying financial benefits to same-sex marriages. Given the line of questioning by swing-vote Justice Kennedy who may side with the more liberal justices, it seems likely that DOMA will be overturned and deemed unconstitutional.
Analysis and Commentary
In either case, what we see before is a historic moment which may very well be our generations civil rights crisis and movement. Arguments are being made by both sides, but the question is how will history look back on this. While the legal aspects of this case are complicated, there are some clear arguments that should be considered. First, denial of same-sex marriages based on traditional Judeo-Christian values and Biblical reasoning violates the separation of Church and State principle inherent in our politics and the First Amendment which ensures that no single church will be upheld over another. By fighting against marriage equality based on religious dogma, one narrow interpretation is being upheld over all others. Of course, nevermind the irony of a nation which was founded upon escape from religious persecution, years down the line using religious justification to persecute another group. Marriage is ultimately a religious institution supported by the government, upholding one definition of marriage based upon one religious doctrine violates the promise of the First Amendment which prohibits the making of laws based on religion.
Secondly, any arguments in defense of state’s rights ultimately is a cop-out and refuses to acknowledge that individual rights like equality trump any state rights. While it is all great to be a proponent of state rights, the de facto role of the federal government and the courts is to intervene in cases when the states are impeding upon the rights of its citizenry. If such was not the case, many southern states would continue to have discriminatory laws in respect to race. Historical examples of this are the intervention of Eisenhower in Little Rock, the overturning of Jim Crow laws, and much more. It is the job of federal government to intervene to avoid the tyranny of the mob and even the tyranny imposed by state government. Arguments against same-sex marriage predicated upon state rights falls badly short in light of history.
Legally, any refusal of rights based on discrimination violates the principles of the Equal Protection Clause. By refusing marriage equality this nation would be denying a whole population of tax-paying citizens their God-given and Constitutional rights towards equality. Such a refusal to recognize the rights of homosexuals to marry the partners they love is analogous to the civil rights movement and those who stood in opposition to giving rights to African Americans whether it was the right to vote, or the right to marry whom they loved regardless of race, for indeed there once was a time when interracial marriage was persecuted. In the past we rose above such dark moments of history denying the forces of ignorance that chose to strip people of their unalienable rights based on hate of a certain superficial feature–in the past it may have been race, but now it is sexual orientation.
Will we do our history proud and once more come out on the right side of history and progress, or will we fail our generations version of the civil rights? Will we once and for all determine that equality exists in America regardless of gender, religion, sexual orientation, or any other arbitrary supposed difference?
Whatever the case, what is undeniable is that what we face is a historic moment. Whatever the courts decide and our actions and standing as a nation will be chronicled by the pen of the historian and through the lens of time we will either be remembered for progress, or not.