For gays, justice awaits

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Jun 23, 2013

Supreme Court appears ready to lift bans on same-sex marriage

The Supreme Court is on the verge of ruling on challenges to the 1996 federal Defense of Marriage Act and California’s Proposition 8, a constitutional amendment approved by voters in 2008. Both laws target gays and same-sex marriages. DOMA treats as nullities lawful marriages performed in New York and a steadily increasing number of states, for the roughly 1,100 ways that marital status is crucial in the application of federal law.

Prop. 8 overturned a California high court decision holding that couples of the same sex had the right to marry and ushered a torrent of such marriages in the weeks just before it was approved on Nov. 5, 2008. I celebrated one in San Francisco on Oct. 18, 2008, as my cousin Sharon married Matty, her partner of 28 years and mother of Sharon’s biological son, Jesse.

The imminent Supreme Court decisions will be a very big deal, profoundly shaping future events and their pace, contrary to the widely expressed view that history has already rendered its verdict as states rapidly authorize same-sex marriage.

Eleven states and the District of Columbia do authorize same-sex marriage. Yet even with that clear trend, it likely would take decades before most gay citizens attain a status that the courts consistently have ruled is “fundamental.” It is cold comfort to a gay couple in Kentucky that they someday may be recognized as full citizens.

When the DOMA and Prop. 8 rulings are announced they will refer to the court’s 1967 decision in Loving vs. Virginia, where anti-miscegenation laws, prohibiting and often criminalizing interracial marriage, were struck down in 16 states. While neither U.S. v. Windsor (DOMA) nor Hollingsworth v. Perry (Prop. 8) will require all states to permit same-sex marriage, the rulings will set the stage for that to happen rapidly. This will spare our nation decades of debate over whether committed couples — many rearing children, both adopted and biological — can have the legal benefits and burdens marriage brings. These include Social Security survivor payments and income tax marriage penalties.

I predict that the court will strike down DOMA and Prop. 8 as violative of the equal protection guarantee in our Constitution. The votes in both cases are likely to be 6 to 3, with conservative Chief Justice John Roberts and Justice Anthony Kennedy joining liberal colleagues Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in the majority.

There is even some chance that these decisions will be unanimous. The questions posed during oral argument by very conservative Justices Antonin Scalia and Samuel Alito showed that both were not only troubled by sexual orientation discrimination, but even more by the absurdity of the arguments supporting it.

The Prop. 8 advocates said that allowing same-sex marriage in California would “refocus the purpose of marriage … away from the raising of children and to the emotional needs and desires of adults.” But the court knows that California allows same-sex couples to adopt and that 40,000 children, biological and adopted are being reared by such couples in California, with no reported ill effects. In a phrase, “The Kids are Alright.”

DOMA advocates cited Congress’ desire for uniformity, meaning, whenever a federal law refers to “marriage” that equals one woman and one man. However, the justices know that when DOMA was enacted, not a single state permitted same-sex marriage. Uniformity prevailed and had nothing to do with DOMA’s passage. It was a pre-emptive strike motivated by animosity to gays, clearly expressed in the House report that stated: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Scalia and Alito, like most of us, love, are related to and work with gay people. They listened attentively to conservative former Solicitor General Ted Olson, George W. Bush’s winning advocate in Bush v. Gore, as he exposed the real motivation behind Prop. 8 and similar anti-gay measures.

What the ninth justice, Clarence Thomas, may have thought and how he might vote is more difficult to predict. As in almost all the cases he has heard in his 22 years on the Supreme Court, Thomas did not say anything.

Without hedging the prediction of two resounding victories for liberty, equality and the pursuit of happiness by votes of 6-3, 9-0 (or 8-1, considering the Thomas cypher) the court could refuse to decide these appeals because they present troublesome “standing” issues. Neither DOMA nor Prop. 8 were defended by parties traditionally deemed qualified to shoulder such burden. The U.S. refused to defend DOMA, consistent with President Barack Obama’s reversal on his 2008 stance. Instead, the ad hoc Bipartisan Legal Advisory Group of the House “assumed the position” and tried to rationalize the House’s clearly homophobic statements.

Similarly, the governor and the attorney general of California refused to defend Prop. 8. That honor fell to citizen-proponents of the initiative. As with DOMA, the substitute advocates didn’t have an easy time. The Supreme Court relies upon truly adverse and well-represented parties to clearly frame disputes that it will decide.

The lack of adequate representation was apparent in both arguments. Nevertheless, the court is highly unlikely to duck here. Instead, it will frame the discussion of these procedural defects in a manner that allows it to disregard their implications in future cases with similar problems. That’s what the court did almost 13 years ago in Bush v. Gore. But that is another story.



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