Good day, all! In today’s post, TheLeftyWolfe will examine the two same-sex marriage cases that the U.S. Supreme Court has decided to hear next year. Both of these cases, as all gay marriage cases in the past, have divided Americans across the country. In the liberal bastions of the big cities and coastlines, choruses of support fill the airwaves and newspapers, while many in the suburban and rural communities seem just as enthusiastic about halting this seemingly inevitable march towards marriage equality. Let’s take a look at the merits of each case below. Take a seat and read on!
Case #1 (California) – Hollingsworth v. Perry, No. 12-144
In the months before the 2008 election, the California state Supreme Court approved same-sex marriage (SSM). Like several other states before it, the state judiciary enacted its own same-sex marriage law in lieu of letting the public vote on it (just as in the past across the U.S., where it was the court systems or legislatures that gave women the right to vote, ended legal segregation, etc). This greatly enraged the conservative movement in the state, which immediately began the tedious process of putting this issue to a public vote. As soon as the law was put into effect in the Summer of 2008, conservative leaders across the nation began sending volunteers and TENS OF MILLIONS in cash to the Golden State hoping an easy victory at the polls would quickly douse this brief moment of equality for all Californians. Fervent Republican supporters were not the only backers of Proposition 8, however (the Proposal to outlaw gay marriage in California). Coming to their rescue with hundreds more volunteers and MILLIONS more in donations was the Mormon Church and its members. The Latter Day Saints organization also worked in tandem with conservatives to register angry California voters and get them to polls on election day 2008.
Hey…I thought religious institutions were outlawed from dabbling in politics???…wouldn’t their action here violate that? Why should taxpayers be on the hook for supporting a church, or any organization for that matter, that seeks to influence American politics? They should have their tax-exempt status revoked immediately. But I digress…
Now…one might think that having Barack Obama on the Presidential ticket that year would be a great omen for those against Prop 8, right? After all, if more Democratic voters come to the polls on election day, gay marriage should survive this brutal test. NOT SO!!!
In an unfortunate turn of fate, a majority of African-American voters in California (who supported Obama by a count of something like 93% to 7% for John McCain), were staunchly against gay marriage. Thus, as Obama and Democrats across the state were swept into office on election day 2008, so was the aforementioned Prop 8…a voter initiative that took away the once-legal right for gays to marry in the state of California. And it is precisely this act that is in question before the U.S. Supreme Court.
Opponents of Prop 8 nearly immediately filed a lawsuit in early 2009, claiming that “California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.” In other words, supporters of SSM contend that Prop 8 was in violation of the U.S. Constitution by taking away the rights of a specific class of people to marry in accordance with state laws. Two federal courts, including the United States Court of Appeals for the Ninth Circuit, have ruled against supporters of Prop 8. These courts have agreed that voters do not have the constitutional ability to take away rights already granted to a disfavored class of citizens (can voters override a decision of their state Supreme Court??…of course not!). Again, this is the exact question before the U.S. Supreme Court: can the citizen voters of a state pass into law statues that blatantly discriminate against their fellow citizens by taking away a right that was once theirs, but letting others still hold that right? Could voters in Iowa take away the right to marry from Hispanics? From senior citizens? Then how they can legally take away the right to marry that gays and lesbians in California once enjoyed???
As this case gets ready to be heard next year by the U.S. Supreme Court, gay marriage advocates have reason to be cheerful. While we all know that the current justices on the court are highly polarized in their voting preferences (there are four very liberal justices, four very conservative justices and one swing vote, Justice Anthony Kennedy, who leans just slightly to the right but has a strong record voting in favor of gay rights), the outlook is still more positive than negative. In fact, the decision of the Appeals Court in San Francisco was written with Justice Kennedy in mind. The language of their verdict was crafted in a way as to hopefully draw legal support from Kennedy…paving the way for a win at the Supreme Court for this important battle.
TheLeftyWolfe Calls It!! – The U.S. Supreme Court, in a 5-4 vote, will uphold the decisions of the lower courts and affirm that Prop 8 is illegal. This, in turn, will re-legalize gay marriage in California, but nowhere else, as this case is very specific and relates only to California law. Although the justices of the U.S. Supreme Court could return a sweeping verdict that legalizes same-sex marriage nationwide, that is unlikely as the court usually prefers to stick to the questions at hand and not issue rulings that might supersede other state laws in effect across the nation. Were the justices to rule against Prop 8…a decision of that magnitude would, however, eventually reverberate across the nation and likely lead more states to begin enacting their own favorable SSM laws.
There is an old saying in political circles, “As California goes, so does the nation.” The Golden State is often at the front of social issues and usually decides such cases years, or even decades, before other states join suit and follow.
Case #2 – United States v. Windsor, No. 12-307
This case, coming from the state of New York, is much different (legally speaking), than the California case. In this instance, Judith Windsor is challenging the Defense of Marriage Act (DOMA), passed in 1996. This act defines marriage as between a man and a woman and means that THOUSANDS of federal laws regarding marriage (such as Social Security survivor’s benefits, inheritance/estate taxes, etc) are legal only to marriage between couples of the opposite sex.
Windsor chose to act out against this discriminatory law after her wife, Thea Clara Spyer, died in 2009 (the couple had been legally married in Canada two years prior to Thea’s death). Because their marriage in Canada was not recognized by the U.S. federal government (due to DOMA), Windsor “faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.” Can the IRS legally favor opposite-sex couples over same-sex couples? Think about this for a second. If a man and woman went on vacation to get married in Canada, their marriage would be legal in all fifty states of the U.S. If a gay couple marries in Canada, however, their union is ruled illegal, at least in the eyes of the federal government.
Can the federal government, through DOMA, choose which marriages it accepts as valid…even if the state of New York ,where Windsor lives, accepts her marriage as legal? After all, marriage rights have ALWAYS been a state issue in America. Like education laws, driving laws and many others, it is a proud tradition of our American democracy that the fifty states have certain powers over specific issues. Although the federal government always has the last say, there are many areas of law where it cedes certain ground to the prerogative of the states. And marriage has almost always been in the state’s realm of powers.
Let me frame the argument a bit more academically:
–>–>Article IV of the U.S. Constitution relates that all states must recognize the legal proceedings of all other states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In other words, the driver’s license you are issued in Texas is also valid in Arizona, your conviction for armed robbery in Illinois is also recognized in Oregon, and the marriage of a man and woman in South Carolina must be recognized as legal in New Jersey. So…how is it that one state (or in this case, the federal government) can refuse to recognize as legal the wedding of Judith Windsor in Canada when the state of New York, where she resides, does accept her marriage? According to Article IV, if one state recognizes your marriage as legal, so should all other states. Why isn’t this so????
This is one of the other most controversial parts of DOMA, as the law makes it legal for states to refuse to accept SSM’s performed in other states. Hhhmmm…let me ask this again…how can a law passed by Congress (DOMA) override Article IV of our U.S. Constitution? Legally speaking, it cannot. Let’s hope the justices of the Supreme Court realize this and strike down DOMA before it does more harm.
–>–>The 14th Amendment to the U.S. Constitution (Equal Protection Clause) states that all citizens of the U.S. must be subject to the same laws: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, the states are forbidden from passing laws that single out specific classes of people for discriminatory, prejudicial treatment. You can’t pass laws that single out certain people with punitive actions. Yet, here we are still…living in a nation that has allowed dozens of states to pass amendments to their own state constitutions that do expressly what the 14th Amendment says is illegal. Think about how inherently illegal all of these anti-gay laws are!!!! Yet, our federal government has allowed such mistreatment to continue for decades. It doesn’t really matter whether you personally support or oppose same-sex marriage. The federal government, as well as all states with homophobic laws, are in direct violation of the 14th Amendment to the very U.S. Constitution they were sworn to defend!
One last thought…historically speaking, when the U.S. Supreme Court takes on highly divisive issues (such as segregation, slavery or gay marriage), they will usually take into account the feelings of the American public as well. And guess what???? In the last five years, support for SSM has finally become a plurality in the U.S.: 40% support full marriage equality, with an additional 30% in support of civil unions. Only 24% of the public remains opposed to gay marriage rights of any sort. These stats will likely play a small, but perhaps critical, role in their decision as well.
TheLeftyWolfe Calls It!! – In a 5-4 stunner, the U.S. Supreme Court will side with Judith Windsor and strike down DOMA as unconstitutional. This is really the only truly legal route for the court to take. It either supports the U.S. Constitution (which includes the 14th Amendment and Equal Protection Clauses) or it doesn’t. Actually, how in the HELL could the Supreme Court of the United States legally go against the Constitution it was created to protect????
As with Case #1 above, the key player on the Supreme Court to watch for in this case is the swing vote, Justice Anthony Kennedy. The remaining eight judges will almost certainly vote along party lines, four in favor and four opposed. In the end, the focus of almost all attention will go towards Kennedy. Although he does have a long track record of support for gay rights, you never really know how the court will rule until it actually does. Case in point…Obama’s healthcare law. Nearly all in the U.S. assumed the very conservative Chief Justice John Roberts would side with his fellow Republicans and vote against it. And we all know how that one turned out, huh? Stay tuned!