ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor

by Caroline Fredrickson, ACS President. This piece is cross-posted on The Huffington Post.

It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.

The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.

In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?

Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.

by Jeremy Leaming

As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”