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History in the high court

Why the U.S. Supreme Court will rule in favor of same-sex marriage

Monday, March 25, 2013

We are on the threshold of a historic decision on individual rights by the Supreme Court of the United States as it considers two cases involving same-sex marriage. The cases about “who you love” could change the laws in 41 states and more than 1,000 federal statutes.

Regardless of what is said in the oral arguments, a reading of the merits briefs makes it clear that the Court will have to rule in favor of gay marriage, and will improve the lives of 130,000 legally-married couples in same-sex marriages.

The cases involve Proposition 8, an amendment to the California constitution, and DOMA, the Defense of Marriage Act, both of which define marriage as a union between a man and a woman.  Both laws have been struck down by federal appeals courts – and the Supreme Court will do the same, because:

  • The time is right. A majority of Americans support gay marriage. An ABC News/Washington Post poll found 58 percent of Americans now believe marriage should be legal for same-sex couples. Public support matters because the Court doesn’t want to issue another controversial decision like Roe v. Wade, which has been subject to attack for 40 years.
  • The government agencies responsible for enforcing the laws refuse to support them. In fact the Department of Justice has filed briefs arguing that both laws should be thrown out.
  • The laws have no relation to their legal purpose, which is to advance “responsible procreation and child-rearing.”
  • Same-sex marriage does not erode the institution of marriage. Nobody says, “I was going to get married, but now I’m not, because gay people can do it.” The Supreme Court has said on 14 occasions that marriage is a fundamental right, and striking down the laws will simply give more people access to it.
  • Most importantly, the laws target a small minority that has been persecuted for hundreds of years, and punishes the members with a denial of marital benefits and second-class status. This is fatal flaw of both Prop 8 and DOMA — they take prejudice and turn it into law.

Granted, the conservative members of the court – like Antonin Scalia and Clarence Thomas – will struggle to find a way to uphold the laws, and show deference to an act of congress and a vote by a state’s electorate. But they will have to rely on weak arguments like tradition (“it’s always been this way”), moral beliefs (personal bias), and crazy concepts like sexual orientation being a “fluid characteristic” (try changing your own sexual orientation).

There is a possibility that the Court may punt and dismiss the cases on procedural issues. But then why did it agree to rule on two very high-profile cases, allow for the filing of dozens of amicus briefs and set aside two days for oral argument? That would be a colossal waste of everyone’s time.

What to look for in the arguments

The central issue is whether the Court can see that sexual orientation – like gender, race and national origin – creates a discernible class of people based on their personal identity. The Constitution recognizes this as creating a “suspect class,” which violates the Equal Protection Clause that all persons who are similarly situated should be treated alike.

This should be easy. There has been a history of laws against gay people since colonial times in the U.S., in employment, immigration, hate crimes, child custody, police enforcement and voter initiatives. Gay people have battled for years to get nine states plus Washington, D.C., to legalize same-sex marriage.

Next, the Court must see that Prop 8 and DOMA penalize members of the class. This should also be easy.

  • The Defense of Marriage Act denies people in same-sex marriages the tax benefits of filing a joint tax return, social security and veterans benefits, the ability to share workplace health insurance coverage and rights under the Family and Medical Leave Act.
  • Prop. 8 makes people in same-sex marriage second-class citizens, because they can get many marital rights in a domestic partnership – except the designation of being spouses. In other words, gay marriage is something separate and less equal than straight marriage.

The legal analysis favoring gay marriage should end there, but there’s more.

No help or harm to straight marriages

To be constitutional, a law must have a rational relationship to its goal, which in this case is channeling people who are having babies into getting married. Prop. 8 and DOMA give no incentives to straight couples and in fact, are irrelevant to them. This is because same-sex marriages have no effect on whether straight couples who are having babies will get married. People having babies are neither deterred nor inspired to get married by what gay people do.

People get married for many reasons, including forming a household, social and economic support and companionship – reasons that have nothing to do with babies. Many people get married with no plans to have children.

Further, scientific studies show that children with gay parents grow up just as healthy, successful and well-adjusted as other children. In California, 40,000 children are currently being raised by same-sex couples.

In sum, the laws fail to support the institution of marriage.

How we got to this point

U.S. v. Windsor, No. 12-307. The Defense of Marriage act was passed by Congress and signed by President Clinton in 1996.  It was a response to a Hawaii Supreme Court decision that same-sex marriage licenses may have been required by that state’s constitution.

Thea Spyer (left) and Edith Windsor

The law affected 1,138 federal laws and cut off couples in same-sex marriages from tax deductions, employment benefits, veteran’s benefits and immigration rights.

The law hit home with for Windsor and another woman, Thea Spyer, who were legally married in New York. Dr. Spyer died in 2009 and named Windsor as her sole heir. Windsor had to pay $363,000 in federal estate taxes because the IRS denied her the marital deduction, saying she was not a “spouse.” She filed suit, asserting that the law violated the Equal Protection Clause of the Fifth Amendment. The Second U.S. Circuit Court ruled in her favor, granting her a tax refund.

The Department of Justice refused to defend DOMA. So the leadership of the House Republican Party filed a brief defending DOMA on the basis of morality, tradition, responsible procreation and child-rearing, the sovereignty of states – and saving money.

However the Supreme Court has ruled in the past that moral objections and prejudice are not a legitimate policy objective, especially to justify a law that discriminates. Neither is tradition, which has been used to oppress racial and religious minorities.

Hollingsworth v. Perry, No. 12-144. Proposition 8 was enacted by voters of California in 2008, following a $40 million political campaign that urged voters to protect their children from gay marriage.

Prop 8 plaintiffs, (from left) Paul Katami, Jeff Jeff Zarrillo, Kris Perry and Sandy Stier.

It created a stigma that gays and lesbians are different, less worthy and not equal under the law. Gays were left the option of forming a domestic partnership, which give same-sex couples marital rights under state law – but withholds the designation of “marriage.”

The City and County of San Francisco sued the public officials responsible for enforcing the state’s marriage laws, arguing that it violated the Equal Protection Clause, and said they would not defend Prop.  8.  The operators of ProtectMarriage.com intervened to defend the initiative, noting that 40 other states ban same-sex marriage. It argued that marriage has always been designed to regulate sexual relationship between men and women, and that Prop. 8 advances this purpose

The Ninth U.S. Circuit Court of Appeals struck the law down in 2012. Kristin Perry and her partner, Sandra Stier of Berkeley, argue that the Supreme Court has said many times that that the liberty to select the partner of one’s choice is a fundamental right. They argue that marriage is not the sole preserve of people who can phsycially have children.

Prop. 8 creates a permanent underclass of couples who are not good enough to marry. A law which discriminates must have a rational relationship to its goal, and prohibiting gay marriage does not make it more likely that straight couples will marry. Further, research shows that permitting same-sex marriage has no adverse effect on marriage, divorce, abortion rates, the percent of children born out of wedlock or the number of household headed by single mothers.

Prop. 8 excludes same-sex couples from one of life’s most precious relationships, and therefore is unconstitutional.

Oral arguments

This week the news media will focus on the arguments before the Supreme Court and try to extract the views of the Justices based on their comments. But when everything is said and done, the written briefs are what counts.

It is obvious that Prop. 8 and DOMA do not advance the stated goal of channeling people having babies into marriage. It is clear that the laws single out a distinct and persecuted minority, and burdens it with a denial of benefits and second-class citizenship. Regardless of whether the Supreme Court gives the cases “heightened scrutiny” or a standard review, it will have to see the prejudice built into the laws and will strike them down.

Opinions and advice expressed in our Views & Voices columns represent the author's own views and not necessarily those of LGBTQ Nation. We welcome opposing views and diverse perspectives. To submit a article, column or video, contact us here. Due to the volume of submissions received, we cannot guarantee publication.

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25 more reader comments:

  1. Because it is an untapped billion dollar business!!

    Posted on Monday, March 25, 2013 at 12:19pm
  2. because if they don’t they know we’ll rainbow stripe the court bldg. pillars

    Posted on Monday, March 25, 2013 at 12:19pm
  3. Because this court does not want to go down in history as making the DREAD SCOTT decision of the 21st century.

    Posted on Monday, March 25, 2013 at 12:20pm
  4. TREMENDOUS article! Concise, well written and extremely informative. There is absolutely no rational response that could refute the facts stated here. Thank you for sharing!

    Posted on Monday, March 25, 2013 at 12:22pm
  5. Trying to predict what the Supreme Court does is like reading tea leaves.

    In the end, all predictions are no more accurate than blind guessing.

    Posted on Monday, March 25, 2013 at 12:25pm
  6. because we are human beings not animals. its not like we are trying to get dogs and cats marriage rights we are humans just like the straight people and the same rights they are born with are the same ones we are born with . and they know they cant keep us from that any longer

    Posted on Monday, March 25, 2013 at 12:26pm
  7. We all COUNT!

    Posted on Monday, March 25, 2013 at 12:31pm
  8. I honestly think I’ll be crushed it gay rights don’t win out. I am counting on my marriage to my husband finally being recognized.

    Posted on Monday, March 25, 2013 at 12:31pm
  9. We’re All Americans’, and are therefore entitled to Equal rights!

    Posted on Monday, March 25, 2013 at 12:47pm
  10. I can hardly wait!!!

    Posted on Monday, March 25, 2013 at 12:51pm
  11. not allowing Gays to marry is a direct violation of their civil rights…it has NOTHING to do with religion or religious beliefs…just like the blacks in the 50′s could not marry a white woman…a violation of civil rights people! and that is a states soverginerity (sp)…will take some class action lawsuites to sue several states to demand cival rights then states will begin to crumble and give what is ours!

    Posted on Monday, March 25, 2013 at 12:53pm
  12. AWESOME!!!!!

    Posted on Monday, March 25, 2013 at 1:00pm
  13. I agree with Mardell! It is way past time for this to become the law of the land. To agree with the freedom of all persons does not force anyone to marry anyone they do not love whether it be man or women. It does give respect to their decision no matter what gender they are or choose! Respect is deserved for all people! Grandma Kay Jean McDonald

    Posted on Monday, March 25, 2013 at 1:05pm
  14. I believe it most certainly is a civil rights issue, however, I do not trust the current court to do the right thing. I lost all confidence in this court after citizens united.

    Posted on Monday, March 25, 2013 at 1:12pm
  15. red, white, and blue, hhmmm equality and 1st amendment along with eoe and justice along with human rights wow people are seriously are going back in time so now its back to the future :)

    Posted on Monday, March 25, 2013 at 1:51pm
  16. Constitutionality and logic would have meant DOMA would have never passed in the first place. However, now that it is so obvious, I am hopeful it will be struck down. We still have the Respect for Marriage Act as backup.

    Posted on Monday, March 25, 2013 at 1:54pm
  17. Edward whelan is full of shit

    Posted on Monday, March 25, 2013 at 2:08pm
  18. Everyone is entitled to equal rights

    Posted on Monday, March 25, 2013 at 2:11pm
  19. Let us hope and pray we finally get into the 21sat century and stop judging who other people love. GOD IS LOVE!

    Posted on Monday, March 25, 2013 at 3:12pm
  20. It had better Win,Period ..Nuff Said

    Posted on Monday, March 25, 2013 at 3:36pm
  21. Every LGBT member needs to contact their Representatives! MAKE SOME NOISE!

    Posted on Monday, March 25, 2013 at 4:05pm
  22. Holding our justices in prayer

    Posted on Tuesday, March 26, 2013 at 4:10am
  23. I hope you’re right.

    Posted on Tuesday, March 26, 2013 at 4:11am
  24. that they do the right thing!

    Posted on Tuesday, March 26, 2013 at 4:37am
  25. They better rule in favor!

    Posted on Tuesday, March 26, 2013 at 5:55am