California’s Proposition 8 has previously been found unconstitutional by the 9th U.S. Circuit of Appeals, which stated the amendment served no purpose other than to “lessen the status and human dignity” of gays and lesbians.
The court’s decisions on both cases could have far reaching implications for same-sex couples.
The Justice Department filed a brief with the Supreme Court on Feb. 22, calling on the nation’s highest court to strike down the Defense of Marriage Act, stating that DOMA violates the equal protection clause of the Fifth Amendment.
“It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 [of DOMA] be invalidated,” wrote Solicitor General Donald Verrilli.
President Barack Obama’s urging of the Supreme Court to strike down DOMA has some LGBT activists hopeful.
“It’ll mean that couples are legally married will be treated as what they are, married,” said Wolfson. “That will have a real tangible benefit. Second, striking down DOMA, though it will not end marriage discrimination, will be put the moral place on the side of fairness and give a huge boost of momentum on our campaign.”
The Obama administration announced in 2011 that it would no longer defend Section 3 of DOMA in federal court challenges, because it believed the law unconstitutional.
Republicans come out against Prop 8
A similar brief was filed regarding Prop 8 by 75 prominent Republicans, including former presidential candidate Jon Huntsman; Mary Cheney, the openly gay daughter of former Vice President Dick Cheney; Hewlett-Packard CEO Meg Whitman; and Christine Todd Whitman, former governor of New Jersey.
The brief, filed Feb. 26, urges the Supreme Court to strike down Prop 8, the amendment that revoked marriage equality in California.
“We’re proud to have these prominent Republicans … in supporting a freedom-based constitutional argument for equality. None of us — Democrat, Republican or Independent — would want to be told that we can’t marry the person we love, and these signatories are blazing the trail for the next generation of fair-minded Republicans still to come,” said HRC President Chad Griffin in a statement.
Brian Moulton, legal director for the Human Rights Campaign, said this week a favorable decision by the court in the Proposition 8 case would answer a fundamental question of the marriage equality movement.
“A broad success in the Prop 8 case really answers this question for us, if there is a constitutional right for couples to marry, it answers the marriage equality question,” Moulton said.
A victory for opponents of Prop 8 would be a catalyst for change, Moulton said, not a cure for marriage woes in states like Georgia where constitutional amendments prohibit gay and lesbian couples from marriage.
“We’re going to have to keep moving this issue forward across the country. At some point, we’ll exhaust the number of states where there isn’t an amendment. We’ll have to take them to the ballot and get rid of them by popular vote. Going back to the state and continuing the great work we’ve seen in the last several years is where we’ll have to focus,” he said.
What if we lose?
Should the court uphold DOMA, marriage advocates would face a much tougher road to nationwide equality. The battleground would become Congress through the Respect for Marriage Act, a proposed bill that would repeal DOMA, and the individual states.
States like Georgia and others where marriage equality is not a popular issue among many voters still have a reason to fight.
“A state like Georgia, where we might not be able to win in the short term, can still contribute to the national momentum,” Wolfson said. “There is plenty of work in Georgia, even if we’re not going to pass [marriage] in the Georgia Capitol in the immediate future.”
Building a coalition of states that have passed marriage equality efforts is the goal, however, despite whatever the court may decide.
“The key way we can do that is to continue winning more states and continue winning over more hearts and minds,” Wolfson added.
While a defeat before the court would sting, Wolfson said Freedom to Marry and other LGBT rights advocates would continue the march.
“No social justice movement ever goes without losses. Winning does not mean that you’re going to win everything. There will be losses. The movement will move forward and we have the victory in our reach if we keep up the work. We’d rather win sooner,” Wolfson said.
States fight for marriage rights
At least five states are currently facing efforts to either allow gay couples to marry or expand domestic partnership rights.
The Colorado State Senate recently approved a bill that would grant same-sex couples many of the same legal protections that heterosexual couples enjoy but stops short of calling such unions “marriages.” The civil unions bill passed the Senate with a bipartisan vote of 21-14. The bill will move on to the Colorado House of Representatives.
Delaware enacted civil union protections in 2011 and as of Jan. 1, 2012, began granting some rights to same-sex couples. Gov. Jack Markell has promised to sign a marriage equality measure into law should it reach his desk. No bills have been introduced, but Equality Delaware, the state’s largest LGBT advocacy organization, says it expects a bill during the current legislative session.
Illinois’ state Senate approved a measure earlier this month that would legalize same-sex marriages. The bill, currently in the House of Representatives, is expected to pass and advance. Gov. Pat Quinn has promised to sign marriage equality into law.
In 2012, voters from Minnesota rejected a constitutional amendment that would have banned same-sex unions. The state does prohibit same-sex marriages through statutes, but a renewed effort for legal recognition this year and a Democratically-controlled legislature and governorship could see the state advance marriage equality efforts.
The pressure is on Rhode Island to pass marriage for same-sex couples in 2013. Gov. Lincoln Chafee has urged the state’s legislators to move forward on gay unions. A measure passed the state’s House of Representatives and is currently awaiting similar treatment in the state Senate. Chafee has promised to sign a marriage equality measure into law should it reach his desk.
Top photo: The United States Supreme Court will hear oral arguments on California’s Proposition 8 and the Defense of Marriage Act March 26-27. (Official photo/Architect of the Capitol)