Dec 28, 2012

The Case of the Decade

Three weeks ago I was driving home from work when I heard an announcement on the radio that made me scream, punch the air, and jump up and down in my seat with glee. The driver in the car next to me surely thought I was insane. The Supreme Court agreed to hear two cases on gay marriage in 2013.

Most people expected them to eventually hear arguments on the constitutionality of DOMA, but to the surprise of pretty much everyone, they have also agreed to hear the appeal case of Judge Walker's 2010 ruling on the constitutionality of Proposition 8 in California.

Supreme Court Justices
So, what does this mean exactly for the future of marriage equality?

The short of it: potentially, the ruling on Prop 8 could set a precedent impacting gay marriage (good or bad) for a decade or more. Or... they could decide not to rule much of anything and leave things as is. Or, somewhere in between. It's all a bit complicated actually, so I've taken some time to sort it all out. If you care, read on!

The long of it: (you might want to grab a cup of coffee and make yourself comfortable)


Edith & Thea
Although there have been multiple rulings in the lower courts that DOMA (law declaring that only a marriage between a man and a woman is recognized at the federal level) is unconstitutional, the one that the Court has decided to hear came about when Edith lost her partner Thea. They were together for 42 years, and finally able to legally marry in 2007. When Thea passed away, Edith was required to pay an estate tax of more than $350k because DOMA doesn't recognize her marriage on a federal level. If Edith's spouse had been male, she wouldn't have to pay a dime, according to DOMA. Edith appealed to the courts that DOMA is unconstitutional, and that her legal marriage should be treated the same as any other American's, under federal law.

Normally what happens, when someone challenges the law as unconstitutional... the federal government defends it, and then the Supreme Court gets to make the final call. What's unusual here is that President Obama's administration refuses to defend DOMA, and in fact encourages the Court to strike it down. So instead, a group of Republicans in Congress have stepped in to defend the law in place of the Executive Branch. 

So first, the Court will decide whether or not that group has a right to defend the law. If they decide they do have the right, then the Court will rule on the constitutionality of DOMA. If they decide the group from Congress does not have the right, DOMA will presumably be invalidated, as the government who made the law has deemed it unconstitutional.

Either way, things are not looking so good for DOMA. 

Having DOMA out of the way is a very good thing. It will improve the lives of all legally married gay couples in the U.S.. But it doesn't necessarily change anything for couples living in the 41 states where gay marriage is not legal. 

Here's what could potentially change the lives of couples living in the other 41 states...


Judge Walker overturned Prop 8 in 2010
In 2008, the state of California voted by referendum to ban gay marriage by a majority of Californians saying "yes" to Proposition 8 on the ballot. Two years later, that ban was challenged as "unconstitutional" by multiple same-sex couples suing the state, and Judge Walker ruled in favor of the ban being overturned (i.e. legalizing gay marriage in California), on the basis of the 14th Amendment of the United States: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Section 1B, 14th Amendment)

The Supreme Court has decided to hear arguments on two different aspects of this case. 

First, they want to make sure that it is their jurisdiction to make a ruling on this. Normally, it would be, except that Walker's decision is not being appealed by the State of California (the rightful appellant), instead it is being appealed by a group of California citizens who support "traditional marriage". The Government of CA refuses to defend the ban. If they decide that those citizens do not have the right to appeal the decision, then the overturning of Prop 8 stands, thus legalizing gay marriage in CA, and potentially setting a precedent for other states to use the 14th Amendment argument.

The second part of this case that the Supreme Court may decide to hear is the appeal of Walker's decision. If they decide to allow the group of citizens to appeal the decision, the Court will hear arguments to decide for themselves if it is unconstitutional for voters to limit marriage to a man & woman union. Ultimately, they would be deciding if the 14th Amendment provides the constitutional right for same-sex couples to marry. This is potentially the most impactful of all of the possible Supreme Court rulings. 

It's all going to come down to how they interpret the 14th Amendment (if the case even gets this far). Obviously the justices are aware that this ruling could potentially decide the fate of gay marriage for the next decade and beyond. They'll have to decide if "any person" covers people of all sexual orientations. They'll have to decide if "equal protection under the law" includes the right to marry. And if the 14th Amendment does provide for marriage, then does that mean that all states are mandated to recognize same sex marriage? If the 14th Amendment does not imply the right to marry, do states have to recognize the marriages or same sex couples from other states, even if it is not allowed according to their own laws? They may decide something in between, such as the 14th Amendment may include that right for same sex couples, but it is ultimately up to the states to decide.


Ok, my brain is fried. Can you see why it took me three weeks to pull this post together? There is a lot to think about here. The justices ultimately gave themselves an "out", saying that they also have the right to not decide anything at all. 

No matter what happens, this is huge. This is what we've been waiting for. And marriage equality in the U.S. is likely to take a huge step (either forward, or backward) in 2013. Anyone else following along with all of this? What do you think is going to happen? Were you hopeful or worried when you heard the news that they'd be hearing these cases?

My primary sources were here, here and here. Pics gathered from google image searches.


  1. Even as a non-US citizen, it's obvious that this is huge. Fingers crossed that the justices see the huge injustices which currently occur, and give America a consistent approach to all people, across a state and federal level. Excited to watch it all unfold, this truly is the civil rights battle of our generation. Great breakdown btw!

    Carley xx

  2. Thanks for this great summary! For SCOTUS to fail to rule on recent legislation, referendums, and indeed DOMA itself, would be for them to shirk their duty with respect to the Constitution. A Supreme Court elucidation of the Equal Protection clause, with respect to the cases now before it is essential, not only on this issue, but because it addresses ways in which individual rights should determined at all levels of government, and will provide a helpful example of one area where prejudicial laws, unconstitutional laws, have been on the books for too long. (Clearly elucidation is required. When the 14th Amendment was authored it was only intended to extend equal rights to African American males.) If SCOTUS chooses not to rule, they must at least explain how this case does not fall under their purview more than any other juridical body in the US. And then it will be left to future courts who better understand their duty.

    This will not be another Plessy v. Ferguson (1896), where the Court held that "separate but equal" racial segregation was constitutional. All the laws under fire in these cases are explicitly unequal. This is not a state matter. This is a matter of the federal Constitution. The unequal application of Federal laws, based solely on sexual orientation, is what is at issue here.

    This should not be a Church--State issue. We should not read our definitions of "marriage" from religious texts, but from national laws. The beauty of the Bill of Rights is that it grants the same rights to those like us as to those we deem different from us. We are one Nation, and we should enjoy equally the protection of the laws of our nation--for whose betterment we pay with our taxes, and for whose preservation we pay with our lives.


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