History-Making Week for Marriage Equality at the Supreme Court -- The Stakes Are Enormous
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What exactly is the Court deciding?
The court is going to hear arguments in two cases; in both of them, lower courts ruled in favor of marriage equality. On Tuesday, justices will hear a case on the constitutionality of California’s Proposition 8, in which voters overturned a pro-marriage-equality ruling by the state’s Supreme Court and stripped same-sex couples of the right to get married in the state. The American Foundation for Equal Rights, which was created to mount a legal challenge to Prop 8, is bringing this lawsuit, known as Hollingsworth v. Perry.
On Wednesday, the court will hear arguments in Windsor v. The United States, a challenge to part of the federal Defense of Marriage Act, which was signed into law in 1996. In dispute is the part of DOMA that says the federal government will only recognize marriage between a man and a woman. The case was brought by Edith Windsor, a lesbian who was hit with a $363,000 estate tax bill after her late wife died because under DOMA the federal government does not recognize that she was legally married.
Dozens of amicus briefs, known as “friend of the court” briefs, have been filed by organizations and individuals who are not directly involved in the litigation but have a stake in the outcome and want to urge the justices to consider a particular aspect to the case.
On the pro-equality side, amicus briefs demonstrate a growing breadth of support. Major civil rights organizations have weighed in, including the Leadership Conference on Civil Rights, the NAACP and NAACP Legal Defense Fund, the Mexican American Legal Defense Fund, the National Council of La Raza, and more. Three major labor organizations – the AFL-CIO, National Education Organization, and Change to Win – argue that marriage inequality denies gay and lesbian working people and their families access to important benefits. Another brief comes from a broad range of religious organizations making the case that some religions support marriage equality and the government should not deny civil equality based on one particular religious view on marriage. There’s a brief from pro-equality professional football players Chris Kluwe and Brendon Ayabandejo. There’s even a brief from more than 100 Republican officials, activists, and political celebrities and one from business leaders.
The anti-equality side includes conservative religious and political organizations, 20 state attorneys general, a religious-right legal group arguing that marriage equality poses a threat to religious freedom, conservative African Americans arguing that these cases are nothing like challenges to state bans on interracial marriage, and even a brief from a few anti-marriage equality LGB folks.
What could happen?
Almost anything. If a conservative majority rules that Prop 8 and DOMA are constitutional, we’d be back where we are now, with marriage equality needing to be fought on a state-by-state basis, and with DOMA blocking federal recognition until the law is overturned by Congress and the president. It would leave many Americans without equal protection under the law, but would not block future progress.
In the Prop 8 case, the court could agree with the district court that allowing voters to take away the right to marry from some couples was unconstitutional. A narrow ruling on that front would give couples in California a right to marry but might not change the law anywhere else. The most expansive possibility – also the most explosive politically – would be a ruling that the principle of equal protection under the law, guaranteed by the 14th Amendment to the Constitution, requires all states to recognize marriage equality.