The U.S. Supreme Court hears arguments in two cases this month that could decide the course of the fight for marriage equality for a generation.
The Supreme Court will hear a challenge to Proposition 8, the ballot measure that ended same-sex marriage in California, on March 26.
“This case is about the fundamental constitutional right of every American to marry the person they love,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights, which represents two gay couples challenging the law.
Both a federal district court and a three-judge panel of the Ninth Circuit Court of Appeals have already found the measure unconstitutional.
“A growing majority of people across the nation see that Proposition 8 and laws like it are unfair, unlawful, and contrary to basic American values. It is time for the Supreme Court to recognize our Constitution’s promise of marriage equality for all,” Umhoefer said when AFER filed its brief with the Supreme Court. “And when that day comes, we will be more American.”
The next day, the nation’s highest court will hear a challenge to the Defense of Marriage Act, the 1996 law that denies federal marriage rights to same-sex couples.
Edith Windsor, now 83 years old, married her partner of more than four decades, Thea Spyer, in Canada in 2007. When Spyer died in 2009, Windsor was hit with an inheritance tax bill of more than $360,000, which she would not have owed if the government recognized her marriage. Windsor sued with help from American Civil Liberties Union.
“The four decades that Edie Windsor spent with her late spouse are a testament to the words ‘in sickness and in health, till death do us part,’” said James Esseks, director of the ACLU LGBT Project, when the Supreme Court agreed to take the case. “After building their lives together and getting married, it is unfair for the federal government to treat them as though they were legal strangers.”
The Proposition 8 case has the biggest potential impact. AFER argues that denying same-sex couples the right to marry violates the U.S. Constitution’s 14th amendment guarantees of due process and equal protection, so a total win could pave the way for same-sex marriage around the country.
Big losses in either case, meanwhile, could make it much more difficult to win marriage equality — especially at the federal level — until the U.S. Congress repeals DOMA or passes pro-active marriage legislation, or until the make-up of the Supreme Court has changed enough that a new case might yield a different decision.
In short, a loss could create “a generation of delay,” said Jon Davidson, legal director for Lambda Legal, which has filed briefs supporting marriage equality in both cases.
But the possible outcomes are much more complicated than simply if LGBT advocates win, gay marriage will be legal around the country, and if they don’t, it won’t.
In addition to what the court decides in these cases, how it reaches the decision could also prove key to gay rights cases in the future.
“One of the most important issues the court might decide, which is possible with many outcomes in both cases, is what level of judicial scrutiny should be applied to laws based on sexual orientation,” Davidson said.
Those arguing in favor of same-sex couples, as well as the Obama administration, have said the court should apply “heightened scrutiny” instead of simply “rational basis.”
“Rational basis” would presume that laws based on sexual orientation are constitutional, and places the burden on the party challenging the law to show it does not rationally further any legitimate government interest.
“Heightened scrutiny,” however, would presume such laws are unconstitutional and the burden would be on the government to show that they substantially further an important government objective.
“That’s a harder test to meet,” Davidson said, and could have implications for other laws dealing with sexual orientation, such as those related to employment discrimination, adoption, and other issues.
Friends of the court (but not necessarily friends of ours)
The two gay marriage cases pending before the Supreme Court have drawn dozens of amicus curiae or “friend-of-the-court” briefs from organizations, state governments, companies and even individuals anxious to weigh in on what could be a defining moment for lesbian and gay rights.
Here are few of the “friends” (some not-so-friendly to our community) who have either submitted their own briefs or signed briefs submitted by multiple sources.
For marriage equality
President Barack Obama
NFL players Brendon Ayanbadejo and Chris Kluwe
Gay & Lesbian Advocates & Defenders
NAACP Legal Defense & Educational Fund
American Bar Association
American Sociological Association
American Medical Association
American Academy of Pediatrics
Atlanta Bar Association
Stonewall Bar Association
Georgia Benefits Council
Campaign for Southern Equality
172 members of the U.S. House and 40 U.S. senators
(includes Reps. John Lewis and Hank Johnson from Georgia)
States: Massachusetts. Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington, plus the District of Columbia
Companies: Abercrombie & Fitch, Aetna, Apple, Barnes & Noble, Cisco Systems, eBay, Estee Lauder, Facebook, Google, Hewlett-Packard, Intel, Levi-Strauss, Morgan Stanley, Nike, Office Depot, Oracle, Panasonic, Tiffany & Co. and more.
Against marriage equality
Family Research Council
United States Conference of Catholic Bishops
Parents & Friends of Ex-Gays
Concerned Women for America
Westboro Baptist Church
Southern Baptist Convention
Church of Jesus Christ of Latter-Day Saints
Lutheran Church-Missouri Synod
Union of Orthodox Jewish Congregations
10 U.S. senators including U.S. Sen. Saxby Chambliss (R-Ga.)
States: Indiana, Virginia, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin
Top photo: The United States Supreme Court (via flickr.com/frted, CC 3.0)