2012 Dec 14

written by Sherri Joubert

Cathy DeBuono Jill Bennett What's Your Problem Ep. 14

Left to right: Cathy DeBuono and Jill Bennett, engaged Oct. 24, 2011

I’m sure the vast majority of you don’t follow SCOTUSblog (SCOTUS means Supreme Court of the United States), and I don’t blame you at all if you don’t. It’s constitutional law for Heaven’s sake.

But there are times when the Supreme Court’s decisions interest a lot of people, such as in Brown v. Board of Education (1954), Loving v. Virginia (1967), Roe v. Wade (1973), and the disastrous and horrible Plessy v. Ferguson (1896). There was a lot of interest about the outcome of the recent Affordable Care Act case (which was found to be constitutional with a few changes).

The two cases SCOTUS is taking up are United States v. Windsor (the federal Defense of Marriage Act or DOMA case) and Hollingsworth v. Perry (the California Prop 8 case). Oral arguments will be heard in March 2013 and decisions are expected by June 2013.

These decisions are important because they will set the law of the land, and broad-reaching negative decisions could set LGBTQ equal rights back a generation.

There is a fundamental procedural issue with both cases involving Article III Section 2 of the U.S. Constitution itself. The parties on both sides of any case coming before a court must be proper parties, meaning the outcome of the case must directly affect their institutions or lives. Federal laws are usually defended by the U.S. Department of Justice (DOJ), and state matters are usually defended by the attorney general of the state in question.

In the DOMA case, the DOJ has not been defending the law in court. They left DOMA defense to the House of Representatives, and the Justices question whether the House can properly represent the U.S. government. Edith Windsor is a proper party to the DOMA case.

In the Prop 8 case, the state of California initially defended it in federal court, but dropped its defense on appeal because all state parties consider the amendment unconstitutional on due process and equal protection grounds. Federal Judge Vaughn Walker allowed Hollingsworth et al. to intervene as secondary defendants in the initial case when Perry et al. sued the state of California. Perry is a proper party.

The Prop 8 case was taken to federal court because the California State Supreme Court already ruled on marriage equality and upheld it. Prop 8 amended the California constitution banning same-sex marriage. The state supreme court would have little choice but to rule against any plaintiff seeking reinstatement of same-sex marriage rights.

Hollingsworth is Dennis Hollingsworth, a member of the religious conservative activist group Protect Marriage, whose mission is to protect the definition of marriage as between one man and one woman, and deny marriage rights to same-sex couples on religious grounds. They were proponents of Proposition 8 and helped put it on the 2008 ballot. The question is whether Hollingsworth can be considered a proper party since the outcome will not directly affect him or his organization. They have no interest legally because of the U.S. Constitution’s First Amendment.

So, the Supreme Court starts with strictly procedural arguments before the cases can proceed on the merits, meaning the legal reasons they are coming before the court. Lets assume the court gets to the merits of each case for now.

I hope the outcome of the DOMA ruling is the high court strikes down the definition of marriage clause and allows federal benefits for all legally recognized marriages where ever they exist. It currently defines marriage as strictly between one man and one woman for federal benefits purposes.

Edith Windsor was legally married to her now-deceased wife in Canada, and is suing for her federal rights to exemption of estate taxes and death benefits afforded to surviving spouses. A narrow decision striking the definition clause would give all federal rights to married couples and surviving spouses regardless of sex, and would leave marriage laws and definitions in the states where they have always been.

If the high court takes on redefining marriage for the whole country now, they may uphold DOMA because they are not ready to move forward on this issue. Such a ruling would be negative, but not disastrous, for same-sex married couples because it would not end their marriages or states rights. DOMA only affects federal recognition of marriage.

It would be an easy, narrow ruling to make, kick marriage definition back to the states, and grant all federal rights and benefits to married couples as long as their marriages are legally recognized.

On the Prop 8 case, I hope either they throw it out on Article III procedural grounds, or they strike Prop 8 down as a law applying strictly and narrowly to the state of California. There are enough irregularities in California to allow them to do this.

One issue is California already had equal marriage rights and they were taken away. There are many same-sex couples in California whose marriages are still legally recognized. Prop 8 violates the state constitution’s equal protection and due process articles. It also violates the U.S. Constitution on the same grounds. If some same-sex couples can be legally married, why can’t all of them be legally married?

If the Prop 8 case is thrown out, the ruling originally made by Judge Walker will stand, and Prop 8 will be struck down. If the Supreme Court finds Hollingsworth an improper party, Hollingsworth is also an improper party to the ninth circuit court, and its ruling will also be voided. The only case still standing will be Perry v. Schwarzenegger, the original case.

I know a lot of marriage equality proponents, myself included, would love for the court to rule widely in favor of nationwide marriage equality. I just don’t believe this conservative court would make such a ruling, and the negative consequences are far worse than a narrow ruling or no ruling in both cases.

“The arc of the moral universe is long, but it bends toward justice.” — Dr. Martin Luther King, Jr., Montgomery, AL, 1963

What do you think? What will be thought of this issue in just 10 or 20 years? Please tell us in the comments below.

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13 Responses to “Supreme Court to hear 2 marriage equality cases–what I hope they will decide to do”

  1. Beat Schindler Says:

    This is too complex an issue for me to understand. Seems though that – regardless of their ‘target[s]‘ – arguments FOR discrimination are rooted in religion, not in humanity. Religion at its worst – thank God we have separation of church and state, for where church is the state it’s worse. I don’t even know the history of same-sex marriage. If SCOTUS gave it a thumbs up, would the U.S. be the first country EVER to grant equal [marriage] rights to couples regardless of gender? I’d say it is level with the gun ‘debate’ – a hard nut to crack. I’m rooting for you.
    Beat Schindler´s last blog post ..The Zen Of Decisions

  2. Mark Harrison Says:

    It is a shame that government can intrude so far into people’s private business.

  3. Debbie @ Happymaker Says:

    I am with Beat this is a very complex issue. Talking from my heart though, i just don’t believe in same sex marriages. The question I ask myself is, “how many same sex couples really stay together?” Yes, i know there are a lot of divorces in this land of the free and home of the brave.”

    Do you know of any same sex couple that has been together for 50 years or even 30?

    If same sex marriage is every allowed in this land, are these couples willing to go along with the laws of divorce when they are ready to move on to another partner?

    Just food for thought?
    Debbie @ Happymaker´s last blog post ..10 Rules to Follow so You Don’t Have a Cheatin Man in Your Life

  4. Joel Says:

    Wow, simple things can be so complicated! If aliens ever landed they would probably be in awe of how complicated humans have made the world. It amazes me things like this are still an issue in the US.
    Joel´s last blog post ..Headway Child Theme – HeadTube

  5. AnneV. Says:

    I have a friend in a long term same sex marriage who once told me the issues in a same sex relationship are the same as those of heterosexual relationship. The only difference is the sex.

    I cannot believe that there are people who wish to legislate their views as the only views, how moral is that?


  6. Sherri Joubert Says:

    Hi Beat,

    It is a complex set of issues, boiling down to denying civil rights to a class of citizens. It violates several parts of the U.S. Constitution and most state constitutions.

    More than a few other countries have equal marriage laws. Canada is the closest to us. There are some countries in Europe who treat same-sex marriage as simply legal marriage.

    I see I could have explained a lot more in the post. So here is some more information about the cases and my opinions.

    My feeling is SCOTUS will strike down or substantially modify DOMA so it can’t be used to discriminate against any legally married couple. The federal government does not handle marriage, states do. States who have equal marriage laws want all their legal marriages treated the same way. At present, states have to sort married couples into same-sex and opposite-sex before they can deal with federal issues affecting married couples. States don’t grant a separate type of license to same-sex couples, so it’s a big task. DOMA is an undo burden imposed by the federal government.

    I don’t believe SCOTUS will rule to strike down Proposition 8 in California in a way that grants equal marriage rights to all Americans. As I explained in the post, it’s a special case.

    Though a majority of Americans approve of equal marriage rights today, SCOTUS probably won’t rule so they are granted to everyone until several more states have equal marriage rights. I think it will be similar to equal marriage rights for interracial couples (Loving v. Virginia, 1967). When SCOTUS made that ruling, only 14 states didn’t allow interracial couples to marry.

    It will be a few years before enough states grant equal rights for SCOTUS to grant it to all Americans. Marriage administration will continue to reside in the states as it always has.

    There has been a sea change between 2008 and 2012. In 2012, 3 states voted to grant equal marriage rights, and a 4th refused to deny future equal rights to same-sex couples. Equality won in every state where it was on the ballot.

    I don’t believe rights are something anyone should be allowed to vote on, rights are automatic and can only be denied by due process of law. Unfortunately, like the Bible, people read and quote the U.S. Constitution to suit their own purposes. We are a hypocritical republic. We have to hope SCOTUS will rule prudently, not ideologically.

  7. Sherri Joubert Says:

    Hi Mark,

    True. So much for small, unobtrusive government and privacy rights.

    The extreme conservatives spew that rhetoric until it comes to privacy, family rights (like same-sex marriage), and womens health. Then they want government small enough to fit into a vagina, and big enough to occupy all vaginas in the country.

  8. Sherri Joubert Says:

    Hi Debbie,

    I find your position interesting given your blog is about happiness. Does the phrase “happily married” only apply to opposite-sex couples, and same-sex couples don’t deserve it? Really? I don’t think you believe that.

    I do in fact personally know many same-sex couples who have been together for 30 or more years, or until death parted them. My cousin Dan and his partner have been together over 35 years. My second cousin Mike and his first partner, who made him a widower, were together over 30 years.

    I have friends who have been together for decades without the benefit of legal marriage. I know of many more same-sex married and long-term partnered couples.

    One of the cases I discussed in my post is about a legally married lesbian couple who were together over 45 years when one died, Edith Windsor and her wife Thea.

    Here’s a list of famous people who have very long-term partners or spouses: Rep. Barney Frank and his husband Jim, Rachel Maddow and her partner Susan, Ellen DeGeneres and her wife Portia DeRossi, Jane Lynch and her partner, George Takei and his husband, Chely Wright and her wife, Wanda Sykes and her wife, Sen. Tammy Baldwin and her partner. I could go on.

    After Massachusetts granted same sex couples legal marriage, the state’s divorce rate dropped to below 1940 levels. Same sex couples are the ones that stay together at a much higher rate after legal marriage than opposite-sex couples. It is so hard to get married to a same-sex partner that you won’t go through it all if you aren’t sure you’ll stay.

    Once you are legally married, you are bound by all the rights and responsibilities of legal marriage. They are bound by the same laws that govern opposite sex marriages. If they want to split up, they have to legally divorce through family court just like everyone else. One same-sex spouse can’t legally get up and leave without the same consequences that would apply to an opposite sex spouse.

    Legal marriage also provides child custody and support, and spousal support along with equal property division should a couple divorce. Many same-sex couples have children, and they want the same protections for their children as opposite-sex couples have for theirs.

    I hope you will rethink your opinion. I just don’t buy that you really believe that deep down in your heart.

  9. Sherri Joubert Says:

    Hi Joel,

    I agree. I wonder what future humans will think when they excavate our lost civilization thousands of years from now.

    We struggle to understand ancient cultures of which we only have archeological evidence. I think they’ll be in the same boat.

  10. Sherri Joubert Says:

    Hi Anne,

    Your friend is exactly right and so are you. All the issues are exactly the same. The only difference is both spouses are the same sex.

    How can discrimination of anyone based on a characteristic they cannot change be considered moral in a society founded on the belief that everyone is created equal?

    We must be living on George Orwell’s distopian Animal Farm.

  11. Theo J. Says:

    What needs to be pursued aggressively is legal same-sex CIVIL marriage—giving religious organizations standing in the debate hopelessly muddies the issues. This is, after all, about a point of LAW. To my mind, at least…

  12. Sherri Joubert Says:

    Hi Theo,

    Glad to have you! I guess I should change my terminology to be clearer. By legal marriage, I mean civil marriage governed by law.

    I think any consenting adult should be able to civilly marry any other consenting adult of their choosing, and I hate that getting to practice rights we already have takes so much time, effort and red tape.

    But, I’m a realist, and I have a strong feeling that initial steps in the high court on this issue must be baby steps. I would rather see us proceed slowly than suffer a massive negative blow by SCOTUS. That might set back equal civil marriage rights for a couple of decades.

    Because of the nature of these 2 cases, they are good first cases to come before the high court. Both could be overturned on procedural grounds alone, and that may be why they are going first. If they change the DOMA definition of marriage, that wouldn’t allow more people to get married. It would allow those civilly married to have the same rights as all other married couples in their states. Overturning prop 8 would restore a civil right that was taken away after thousands of same-sex civil marriages were in place, a special case. The plaintiff in the prop 8 case represents a religious organization and may be found an improper party. We would get positive outcomes, and the court could avoid directly ruling on same-sex marriage itself.

    We have 3 staunch conservative Justices who will vote against any civil rights brought before them (Thomas, Scalia, and Alito). We have a Chief Justice (Roberts) who seemed to be in the Scalia camp at first but is showing more independent jurisprudence, 1 center-leaning conservatives (Kennedy) considered to be a swing vote on social issues, a center Justice (Breyer), and 3 center and/or left Justices (Ginsburg, Sotomayor, and Kagan).

    Justices past retirement age are Ginsburg, Scalia, Kennedy, and Breyer, oldest to youngest. The other 5 are baby boomers, Thomas being the oldest, born in 1948; and Kagan being the youngest, born in 1960. There is a good chance President Obama will nominate 2-3 new Justices in the next 4 years. Our cause will have a much better chance of success in a court with even one less far right Justice.

    Before we can get religion out of civil marriage, we need to reduce religious ideology within the Supreme Court.

  13. Blake Wagner Says:

    The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.
    Blake Wagner´s last blog post ..No last blog posts to return.

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