High noon at high court on same sex marriage

The U.S. Supreme Court next week will be concluding oral arguments on two major marriage equality cases

On March 26, the federal lawsuit challenging the Defense of Marriage Act filed by Downtown resident Edie Windsor — assessed more than $360,000 in federal estate taxes after her spouse Thea Spyer died in 2009 — will be heard. Windsor’s attorneys at the American Civil Liberties Union will be opposed by Paul Clement, a private attorney representing the so-called Bipartisan Legal Advisory Group of the House of the Representatives, which is controlled by Republican Speaker John Boehner. BLAG stepped into the DOMA litigation in 2011 after the Justice Department determined the 1996 law is unconstitutional.

It was, in fact, the Obama administration that asked the high court to take up the case to settle the question of DOMA’s constitutionality. The Justice Department filed a brief in the case, arguing that laws treating gay and lesbian people differently should be subjected to the most searching form of judicial scrutiny — one that requires a showing of a compelling public purpose served, in narrowly tailored fashion, by the distinction. Viewed in that light, DOMA cannot possibly survive, the Justice Dept. argues.

The counter argument that the purpose of marriage is to promote responsible procreation by heterosexuals does not even meet minimal judicial standards of being rational. Would opponents allow a state to require fertility tests before granting marriage licenses?

But nevertheless, arguments against DOMA are likely to find a receptive ear among some of the court’s conservatives. The law was the federal government’s first significant legislative incursion in history into regulating marriage, something traditionally reserved for the states — so long as minimal federal constitutional guarantees are protected.

Should the high court, or a few conservatives on it, conclude the federal government overreached in enacting DOMA, the victory should go to Windsor. Liberals on the court are likely to agree with the A.C.L.U.’s assertion that even the most lenient scrutiny of the 1996 law would find no constitutionally valid reason for its enactment.

The issue of what level of scrutiny federal courts apply to sexual-orientation discrimination claims may have greater impact on the resolution of the other marriage equality case — the American Foundation for Equal Rights challenge to California’s Proposition 8. At the district court, the foundation won a sweeping victory that found that same-sex couples have a federal constitutional right to marry.

The Supreme Court could conceivably uphold that finding even while applying the most lenient form of review. In 1996, it struck down a Colorado voter initiative that denied gay and lesbian couples the right to enact nondiscrimination laws. Such a victory,  would restore marriage equality to California without confronting the bigger questions of a federal constitutional right to marriage.

Advocates, including us, are hoping the court will move to end discrimination by concluding that any state that gives couples all the rights and benefits of marriage, but denies them access to marriage itself is acting unconstitutionally.

The arguments will be over on March 27, but the suspense could last through the end of June. Come what may, this is certainly among the profound moments in the history of civil rights in America.

The bulk of this editorial is reprinted from Gay City News, a sister publication of Downtown Express.

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