On March 26-27, gays and lesbians throughout the nation were glued to their computers and cell phones watching for first reports on the landmark same-sex marriage cases being argued at the U.S. Supreme Court.
At issue on the first day was whether Proposition 8, passed by a narrow majority of California voters in 2008, could ban same-sex marriages after they had been declared lawful by the state’s highest court. On the second day the justices considered whether the federal government, by virtue of the 1996 Defense of Marriage Act, can deny federal benefits to legally married same-sex couples.
The Supreme Court has already decided both cases. The nine justices met in secret on March 29 – no clerks or staffers allowed – to cast their votes. A first draft of the majority opinion in each case is likely in the works. And although pro-gay legal experts are optimistic, we won’t know the outcome until the court announces its decisions in late June – on the eve of St. Pete Pride.
But what became clear during the last week of March 2013 is that LGBT equality – full, uncompromised, marriage-based equality – has finally reached critical mass as both political reality and cultural imperative.
“This is a watershed moment,” said Orlando attorney and LGBT advocate Mary Meeks. “Whatever comes out of the Supreme Court cases, it will almost certainly be good.”
Shift in Public Opinion
Four years ago, when super-lawyers David Boies and Ted Olson announced they would take their constitutional challenge of Prop. 8 all the way to the Supreme Court, optimism among LGBT activists was hardly universal. Voters in state after state were banning same-sex marriage, and no federal judge had yet overruled them. Skeptics said the legal maneuver was premature and risky “Hail Mary” pass that could sacrifice precious ground that had been gained.
But in four short years the tide has turned. Same-sex marriage is now legal in nine states and the District of Columbia. In March, President Barak Obama expressed unequivocal support for same-sex marriage. According to a recent Washington Post/ABC News poll, almost 60% of Americans of all ages now support marriage equality. For those under 30, the number jumps to more than 80%.
And in the remarkable weeks before and after the Supreme Court cases were argued, there was a tidal wave of altered opinion. Former Secretary of State Hillary Rodham Clinton released a video endorsement of marriage equality. Husband Bill Clinton, who had signed DOMA as President, renounced the law. Republican Senator Rob Portman movingly announced his change of heart regarding same-sex marriage after his son came out to him. Portman was soon publicly joined by a dozen more Senators, including Florida’s Bill Nelson, bringing the total number supporting marriage equality to 53.
Most remarkably, even strident conservative pundits seem to have thrown in the towel. Political advisor Karl Rove has softened his stance. Fox News host Bill O’Reilly recently characterized opponents of same-sex marriage as “bible thumpers.” And radio personality Rush Limbaugh admitted last week that “there’s going to be gay marriage at some point nationwide.”
Protests, in front of the Supreme Court and in Tampa, were large, loud and confident. A simple idea by the Human Rights Campaign to “Turn Facebook Red” resulted in more than two million users changing their profile photos to a crimson symbol of equality and turning the ubiquitous social media site into a striking political statement.
Equality Florida joined 27 organizations in 23 states in submitting an “amicus brief” or advisory opinion to the Supreme Court. A group of Republican leaders also filed a brief, as did a coalition of 300 leading corporations including Disney, Apple, Starbucks, Marriott, Morgan Stanley and Nike.
“When the Supreme Court hears these marriage equality cases, they’ll know that millions of fair-minded Floridians are demanding equal treatment under the law for themselves and their fellow Americans,” said Equality Florida executive director Nadine Smith.
Collective Moral Judgment
At the Supreme Court, a standing-room-only audience heard compelling and confusing arguments. Pointed questions from the justices at times elicited gasps and highlighted rapidly evolving perspectives on same-sex marriage.
The California case was brought by two same-sex couples, both together for more than ten years, whose marriages were nullified by Prop. 8. The DOMA case originated in New York, where plaintiff Edie Windsor was forced to pay $363,000 in federal estate taxes after her partner of 40 years died. The couple was married in Canada, and the marriage was legally recognized in New York. But because of DOMA, Windsor was denied the unlimited marital exclusion on estate taxes.
In both cases, federal District and then Circuit courts found the different treatment of opposite and same-sex couples unconstitutional. And in both cases, the government entity charged with defending the laws in court – the State of California for Prop. 8, and the Justice Department for DOMA – refused.
Prop. 8 was championed in court by its sponsor organization, ProtectMarriage.com, which argued that courts should not lightly interfere with citizen referendums, and that restricting marriage was defensible as a means of protecting children and traditional families. The more conservative justices appeared to agree.
“You want us to step in and render a decision based on the effects of [same-sex marriage], which is newer than cell phones or the Internet?” asked Justice Samuel Alito. “We do not have the ability to see the future.”
But Justice Anthony Kennedy focused on harm done to existing families by Prop. 8.
“There are some forty thousand children in California…that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?” he asked.
The difficult task of defending DOMA was left to the Republican Majority in the U.S. House of Representatives, whose attorney claimed that it was necessary to enforce uniformity in federal law, and that social issues of this kind are best left to the political process.
“You don’t doubt that the lobby supporting enactment of same-sex marriage laws in different states is politically powerful, do you?” Chief Justice John Roberts asked the attorneys seeking to overturn DOMA. “As far as I can tell, political figures are falling all over themselves to endorse your side of the case.”
But in a dramatic moment, Justice Elena Kagan resurrected at least one motive for DOMA – and the same-sex marriage bans that presently exist in 39 states.
“What happened [when DOMA was passed] in 1996 – and I’m going to quote from the House report here- is that, ‘Congress decided to reflect an honor of a collective moral judgment and express moral disapproval of homosexuality,'” Kagan scolded. “Is that what happened?”
And Justice Ruth Bader Ginsburg created laughter when she acknowledged the more than 1,100 federal benefits resulting from marriage, and the impact of DOMA.
“You’re saying [that in states where marriage is legal] there are two kinds of marriage: the full marriage, and then this sort of skim-milk marriage,” Ginsburg observed.
Heightened Scrutiny
Predicting the result of the two cases is irresistible – and almost impossible, given the myriad options available to the court.
According to Meeks, much depends on the level of scrutiny the court applies to Prop. 8 and DOMA.
“If the court applies a heightened scrutiny, as in sex discrimination cases, then defenders would have to demonstrate that the laws are ‘substantially related’ to an ‘important governmental interest,'” Meeks told a crowded gathering at The Center on March 27. “That’s a much greater burden than just demonstrating that the laws have a ‘rational basis.'”
In the Prop. 8 case, the court could find a ‘rational basis’ for the ban, reverse the Circuit court and uphold Prop. 8. Few think this is likely.
They could also rule that ProtectMarriage.com has no standing – no personal stake in the outcome – and thus dismiss the case, leaving the Circuit court ruling intact and making same-sex marriage legal in California, but nowhere else. The same result would occur if the court ruled that California could not withdraw same-sex marriage once it had been made legal by the California Supreme Court.
Or the justices could rule that states like California that offer civil unions while withholding full marriage deny same-sex couples equal protection under the law. If they do, same-sex marriage will become legal not only in California, but also in the seven remaining states that allow “everything but marriage” civil unions (Rhode Island, New Jersey, Delaware, Illinois, Oregon, Nevada and Hawaii). This is the incremental result advocated in a brief filed by the Obama Administration. It advances marriage rights in states inclined toward full equality, while leaving governance of marriage laws to the states.
Or applying heightened scrutiny, the court could rule that there is no ‘important governmental interest’ supporting California’s ban on same-sex marriage and that all such bans – including the one in Florida – violate the Constitution. Many experts believe that even the most liberal justices will shy away from such a sweeping ruling, fearing a Roe v. Wade-type backlash against the court. But others argue that gay rights have been vetted in ways unlike abortion rights.
There are fewer potential outcomes in the DOMA case, but they could be equally tectonic.
It is considered unlikely that the court will dismiss the case because House Republicans lack standing. Also unlikely, given the tenor of questions from the justices, is that they would find DOMA supported by the Constitution.
Most experts think they will find the 1996 law unconstitutional, thus giving same-sex couples in nine states and the District of Columbia access to more than 1,100 federal laws and benefits. The ruling would have no impact in states that ban same-sex marriage. The next round of litigation would likely arise when legally married same-sex couples seek federal benefits even though they reside in states that deny marriage equality.
We will all watch these two landmark Supreme Court decisions with great hopefulness. But also with the knowledge that neither Prop. 8 nor DOMA would pass in our present day world.
Happily, it is a world in which even Rush Limbaugh can be prophetic.
