The words 'Marriage Equality Now' projected onto the
Supreme Court building in Washington, DC on March 26, 2012.
Photo credit: twitter.com/rachnyctalk
The federal Defense of Marriage Act was enacted by Congress in 1996, in response to widespread panic about the possibility of same-sex marriages being allowed in Hawaii. In May, 1993, the Supreme Court of Hawaii ruled that denying same-sex couples the right to marry constituted discrimination on the basis of sex, and, as such, required heightened judicial scrutiny.1 A trial was to proceed in which the state government had to try to prove a ‘compelling state interest’ in the restriction. Suddenly gay marriage became a national issue, for any legal gay marriages in Hawaii would, it seems, have to be recognized everywhere in the country. In frenzied reaction, various states started to pass ‘defense of marriage’ laws or state constitutional amendments to limit marriage and deny any recognition to out-of-state same-sex marriages.2 The same panicked response occurred in Washington. There seemed a strong likelihood of a national constitutional amendment limiting marriage to one man and one woman. What emerged was legislation, the Defense of Marriage Act.
Many supporters believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.3
When Bill Clinton, as President, signed the bill into law in 1996 it had no effect. Same-sex marriage was not legal anywhere in the United States, or anywhere in the world. Hawaiians passed a constitutional amendment allowing the state legislature to restrict marriage, ending the issue there (for the time being). Massachusetts became the first US state with legal same-sex marriage in 2004. Only then did the Defense of Marriage Act start actually restricting the rights of legally married couples. Only then could it be challenged as denying equality to same-sex couples.
Most observers expect that the Supreme Court will strike down the Defense of Marriage Act.4 Two federal appeals courts have already so ruled. The Obama administration has refused to support the legislation in court, calling it an unconstitutional denial of equal rights. His government has eaten way at the Defense of Marriage prohibition by extending military spousal benefits and changing some immigration practices. In July, 2012, the government announced that it would not deport the foreign same-sex partners of Americans, recognizing the relationships as establishing “close family ties,” a sharp reversal of policy.5
Four former senators who voted for the Defense of Marriage Act in 1996 now support the constitutional challenge.6 Bill Clinton, who as president signed the law into force, now argues that it is unconstitutional.7
The second case coming before the US Supreme Court is from California. In 2008 the California Supreme Court opened marriage. A referendum reversed that ruling by amending the state constitution. In 2010 a challenge to the referendum, brought in federal court, opened marriage again. That decision was upheld in February, 2012, by the Ninth Circuit Court of Appeals, treating California as a special case because all substantive rights had already been extended through registration and because some legal same-sex marriages had already been allowed. A new poll shows 61% support for opening marriage in California, with 37% opposed.8
President Obama has taken the somewhat unusual action of intervening in the case (though it is about a state law). His government’s submission includes the following statements:
Tradition, no matter how long established, cannot by itself justify a discriminatory law. Prejudice may not be the basis for differential treatment under law. …
The designation of marriage, conveys a message to society that domestic partnerships or civil unions cannot match.9
The government’s brief suggests what has been called the “eight-state” solution:
It argues that because California and seven other states – Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island – already have given gay couples full legal rights, there is no justification for denying them a right to marry. This is what some lawyers have dubbed the “eight-state solution.” Already nine other states and the District of Columbia authorize same-sex marriage. If the Supreme Court were to adopt the administration’s view, it could raise the total to 17, mostly in the Northeast and on the West Coast. While this would be a significant ruling, it would not require Justice Kennedy [seen as the swing vote] and his colleagues to mandate gay marriage in the red states where majority opinion continues to oppose it.10
Some expect a procedural decision from the Court, ruling that the appellants have no ‘standing’ to argue the appeal. The appellant should be the State of California, but the State refused to appeal the decision. That would be a one-state solution, only applicable to California.
A coalition of religious groups, led by the Jewish Anti-Defamation League, has filed briefs in the two cases, supporting same-sex marriage.11 Sixty leading US companies have as well. Included are Apple, Nike, Facebook, Intel, Xerox, and Cisco. Eighty prominent Republican leaders have filed supporting briefs, including four former governors and two members of Congress.12
References
1 It is discrimination on the basis of sex, for it is the sex of the prospective partner that determines the discriminatory outcome.
2 By 2001 there were 35 states with such laws.
3 Bill Clinton, It’s time to overturn DOMA, Washington Post, March 8, 2013.
4 Other federal discriminatory laws are gone. The ban on gays and lesbians openly serving in the US military has been ended by Congress, after strong urging from President Obama. In 2011 US embassies in various parts of the world, for the first time, hosted receptions marking the International Day against Homophobia.
5 Julia Preston, Same-Sex Couples Granted Protection in Deportations, New York Times, September 28, 2012. For general discussions of the law and politics of the marriage issue in the US see Michael Klarman, From the Closet to the Altar, Oxford, 2012; David Cole, Getting Nearer and Nearer, The New York Review of Books, January 10, 2013.
6 James Withers, Senators who originally voted for DOMA want the law repealed, GayStarNews, March 2, 2012.
7 Bill Clinton, It’s time to overturn DOMA, Washington Post, March 8, 2012.
8 James Withers, California voters are for gay marriage 2 to 1, GayStarNews, March 3, 2013.
9 Greg Hernandez, President Obama speaks out on getting involved in Prop 8 gay marriage case, GayStarNews, March 1, 2013.
10 David Savage, Public opinion could sway Supreme Court’s ruling on gay marriage, Los Angeles Times, March 1, 2013. “Red states” in the US are conservative and support the Republican Party.
11 Andrew Potts, US religious groups file legal briefs in support of marriage equality, GayStarNews March 3, 2013.
12 Over 60 US companies to support same-sex marriage in US Supreme Court, fridae.asia, February 27, 2012 And see, Business and Gay rights, The Economist, March 9, 2012.
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Reader's Comments
against a new institution (marriage for all) which is younger that the net and cell 'phones. Why not ? Can't you wait ?
That's my layman translation of what was said to-day !
I am not overly hopeful, guys :-((
Of course the comment about "newer than the internet and cell phones" is both idiotic and irrelevant. The status of gay relationships has been an issue "forever" (see the Book of Genesis), however it is only recent studies that have shown no harm to children raised by gay people (though these right wing judges seem to have averted their eyes from this material). Also, the novelty of a suit seeking equality (equal protection) is not a defense to a claim that there exists unconstitutional discrimination.
Finally the elephant in the room: The US and many countries have difficulty talking about sex... hence the arguments about marriage and morality, forgetting the reason for marital has NEVER been children or procreation. A marriage is not annullable if there are no offspring! The reason for marriage was that it blessed the sexual union of the couple - remember, in the Judeo-Christian tradition there was no sex before marriage. People got married to have sex with the church's blessing. Children born out of marriage were prejudiced because it showed the woman had committed a sin. Very few take the prohibition of pre-marital sex seriously anymore - the white dress symbolizing virginity is a joke and some people have multiple marriages. Marriage has evolved into a socially favored contract and it is purest discrimination to deny this to some citizens for no good reason. DOMA must be overturned and marriage will likely be left to the States because SCOTUS neither wants to make law nor impose fairness on the backward (largely Southern) states which will slowly over time, fall in line as they did with slavery.
There is really no good reason to deny gay relationships the same social status as straight ones. I haven't used the word "committed" as there is no requirement for straight marriage that the parties demonstrate commitment. lol
The word 'unanimous' was used by the NYTimes or the Washington Post two days after the hearings began describing the first reactions of the Supreme Judges; the use of this word wasn't an endorsement of a negative decision, always possible, by the newspaper, nor was it mine. Be assured.
Being a U.S citizen and gay, I put my money where my mouth is !
Scalia is the enemy not me !
Personally, I believe the Supreme Court will come up with some mushy-washy decision satisfying no one.
The fairest mind in the Court is that of the Judge Stephen Breyer -an Associate Justice of the Supreme Court of the United States- who did not mince his words by saying, recently, which sums up the whole issue :
“Hath a gay person eyes?” Justice Breyer asked. “Hath not they organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a heterosexual? If you prick them, do they not bleed? If you tickle them, do they not laugh? If you poison them, do they not die? ”
And before him, Robert Ingersoll: “Give to every human being every right that you claim for yourself.”
I believe you and I are square, now.
Sincerely.
They did not even touch on the core of constitutionality of Doma and prop 8,but outcried the ignorant trivials like 2000 year 's heterosextual marriage vs. more current than cells the homosexual marriage.What's more they thought we had the experiment of gay marriage and doubted the consequences after it. They even denied us because the uncertainties of the quality of our adoptions for our kids....They forgot how fast within the two decades the tech and wealth and so on brought us up to now. They should annuall the heterosexual marriage since there are over 50% divorce rate and alot single parant familes.They should know more than anyone else that the equality is things that are appealed to and are not surposed to bypass it.
They argued as the supreme justices to my surprise less conviencing than my straight peers why gays are inferior to having the marriage status.We are minorites and they dont like us,so we have to stay out of the mainstream rights.
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