History-Making Week for Marriage Equality at the Supreme Court -- The Stakes Are Enormous

Millions of Americans will be focused on the Supreme Court this week, as the court takes up the question of whether same-sex couples have a right to be legally married, or whether state and federal governments have the right to discriminate against same-sex couples who are or want to be married. 

The stakes are enormous. “These cases present the court with an unprecedented opportunity to clarify that lesbian, gay, and bisexual people are entitled to equal protection under the laws of the nation and of the states, including the laws regarding marriage,” says Shannon Minter, legal director of the National Center for Lesbian Rights. “What the court holds in these cases will have a huge impact on the lives of gay people and our families for years to come.”

That’s why opponents of marriage equality, led by the National Organization for Marriage with the support of religious right groups and the U.S. Conference of Catholic Bishops, are raising their rhetoric to apocalyptic levels and mobilizing their forces for a “March for Marriage” on Tuesday. The bishops have been pushing priests to read letters encouraging people to join the March, and they have highlighted the new pope’s involvement in a similar (unsuccessful) march in Argentina when that country was considering marriage equality. Pro-equality forces will have their own rallies near the Supreme Court on Tuesday and Wednesday, including an interfaith worship service early Tuesday morning.

The big mo (mentum)

There is no question that pro-equality forces have momentum on their side. After a string of losses at the ballot box, equality backers won all four questions before state voters in 2012. President Obama was reelected after having shifted his support to marriage equality, and in his second inaugural address, he said: “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law. For if we are truly created equal, then surely the love we commit to one another must be equal as well.” 

And there was more momentum in the weeks before the oral arguments. A new national poll showed that support for allowing same-sex couples to get legally married had risen to 58 percent. A conservative Republican senator, Rob Portman, announced his support for equality based on his wish that his gay son have the ability to get married. A pro-equality event at the Conservative Political Action Conference out-drew an anti-marriage equality panel. And on Thursday, the American Academy of Pediatrics, after conducting a four-year study, endorsed marriage equality, saying: “There is an emerging consensus, based on extensive review of the scientific literature, that children growing up in households headed by gay men or lesbians are not disadvantaged in any significant respect relative to children of heterosexual parents.”

While political and cultural momentum does not necessarily change the legal questions before the court, everyone agrees that justices are attuned to public opinion. Freedom to Marry’s Evan Wolfson, chief strategist of the marriage equality movement, told supporters last week that momentum is important. "Even before the Supreme Court announced it would hear two marriage cases this year, we mapped out a plan and got to work to do everything we could to maximize our chances of winning. We want to be sure to continue making the same strong case for the freedom to marry in the court of public opinion as our advocates will be making in the court of law."

That’s also why equality proponents are pushing hard to get more legislative victories on marriage before the court rules in June, with campaigns active in Illinois, Minnesota, Delaware, and Rhode Island.

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.

Who’s involved?

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.

If the Court upholds the lower court rulings on the Defense of Marriage Act, Edith Windsor will have a big tax refund coming to her, and couples whose states recognize them as legally married should get access to all the federal benefits and legal protections afforded to other married couples, including access to Social Security and veterans’ survivor benefits.

Each case is complicated by questions about “standing” – the legal principle about who has a right to file or participate in a lawsuit. If the court decides that Prop 8’s supporters lack standing to defend the initiative that the governor and attorney general declined to defend, Prop 8 would be nullified, and same-sex couples in California could once again get legally married.

The DOMA case has an even more complicated set of questions around standing. Normally the federal government defends federal laws that are being challenged in court. But the Obama administration changed its mind on this case and has declined to defend the law. So Republican members of the House of Representatives – technically the Bipartisan Legal Advisory Group – stepped in and hired a lawyer to defend the law. The Supreme Court justices asked law professor Vicki Jackson to submit a brief on the standing issues. She told the court that since the federal government agrees with the lower court rulings, the Supreme Court has no jurisdiction in the case, and that the congressional BLAG has no standing to intervene.  

How will they make up their minds?

Justices will be considering a wide range of arguments made by proponents and opponents of equality. There are briefs, for example, on both sides invoking the principle of federalism. 

One question is whether a denial of marriage equality is a form of discrimination. Opponents of marriage equality say there’s no discrimination because even gay people are allowed to marry a person of the opposite sex. Equality proponents say that courts have recognized the freedom to marry the person you want is a fundamental right, one obviously denied to a gay person who cannot marry a person of the same sex.

Another question is what kind of legal standard will be used. Equality opponents will argue that the laws should be upheld as long as there is any “rational basis” for passing the law. Equality supporters, including the Obama administration, argue that the defenders of these discriminatory measures should have to defend them against a higher standard known as “heightened scrutiny.” The court could decide, as the district court did in Prop 8, that the law doesn’t even pass the “rational basis” test, so that the court doesn’t have to make a decision on whether sexual orientation deserves a form of heightened scrutiny that is applied to evaluating laws with a discriminatory impact based on gender or race. An amicus brief by a number of women’s organizations argued that heightened scrutiny should apply because discrimination based on sexual orientation is similar to discrimination based on gender because it is also grounded in gender stereotypes.

This is one arena in which equality opponents will point to gay-rights victories as evidence that LGBT people are powerful enough to defend themselves and don’t need the courts’ protection. And they’ll cite “ex-gays” to argue that homosexuality is not “immutable” so gay people don’t merit protection as a class.

The strangest argument from opponents of marriage equality might be that government needs to protect against the unique “threat” posed by irresponsible heterosexuals. Paul Clement, the lawyer spending millions of taxpayer dollars to defend DOMA, has argued that opposite-sex couples have the “undeniable and distinct tendency” to “produce unplanned and unintended offspring.” Charles Cooper, another lawyer arguing against marriage equality wrote that the government doesn’t need to let same-sex couples get married because they “don’t present a threat of irresponsible procreation.” This is quite a come-down from rhetoric about the “sanctity of marriage.”

So will everything be clear after June?

Not necessarily. If the court were to decide it didn’t have jurisdiction in the DOMA case, the original court ruling would be upheld, meaning Edith Windsor would get her money back. But it’s not clear how wide the immediate impact of the ruling would be for other married couples. And depending on the legal reasoning used and how the cases are decided, it could well take more litigation to figure out where new boundaries lie. If couples are legally married in one state, but live in a state that does not recognize that marriage, how will the federal government treat them? In addition, some religious right leaders are already calling for massive resistance in the case of a court ruling that marriage equality is required by the Constitution.

The bottom line

Regardless of what the court does, the political and cultural shift in support of LGBT equality will continue. Support for equality among young Americans is overwhelming.

Last week, the American Foundation for Equal Rights described the Prop 8 case this way:

The Prop. 8 Proponents’ arguments boil down to this: The Constitution does not protect the right of every American to marry the person they love. California can single out its gay and lesbian citizens for unequal, second-class treatment under the law. Government can treat its gay and lesbian citizens as separate and inferior. These arguments cannot be squared with the principles of liberty and equality enshrined in our Constitution. That is why the Prop. 8 Proponents lost in district court and the court of appeals. 

“Beneath the legal arguments in both cases is a simple principle,” says People For the American Way’s Michael Keegan. “These cases are about equality under the law. That’s a core American value and a constitutional principle that, thankfully, is supported by a growing majority of Americans.”