marriage equality

  • March 29, 2013

    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.

  • March 27, 2013

    by Jeremy Leaming

    In a powerful, personal piece for USA Today, the Constitutional Accountability Center’s Judith Schaeffer explains why it’s far past time for the demise of the so-called Defense of Marriage Act.

    Schaeffer, vice president of CAC and a longtime attorney handling constitutional matters, and her partner Eileen Ryan had hoped to get married in 2004 after then-San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to same-sex couples. Schaeffer and Ryan planned a trip to San Francisco to wed, after nearly 26 years together, but the California Supreme Court moved too quickly and shut down “Mayor Newsom’s noble endeavor,” Schaeffer writes. Subsequently the couple was able to wed in Canada. Schaeffer notes the couples’ “wedding announcement joyfully expressed our ‘gratitude to the enlightened people of Canada.’”

    Now before the U.S. Supreme Court are two cases that could decide whether lesbian and gay couples have a constitutional right to wed. As noted here yesterday, oral argument in the first case, Hollingsworth v. Perry, which involves a constitutional challenge to California’s ban on same-sex marriage, did not bode well for a high court opinion declaring that same-sex couples have a constitutional right to marry. (It appeared the justices were searching for a way to avoid reaching the question; and tossing the case on standing grounds may well be that avenue.)

  • March 26, 2013

    by Jeremy Leaming

    Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

    After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

    Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

    Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

    Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

    Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

    The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

    Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

    The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

    The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

    Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

    Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”

     

  • March 25, 2013

    by Jeremy Leaming

    Over the weekend The New York Times’ Sheryl Gay Stolberg provided a relatively glowing profile of Brian Brown, the leader of the rabidly antigay group called the National Organization for Marriage.

    Brown, Stolberg tells us, has “an open face and easy laugh that belie his status as a divisive figures in the culture wars” and a “keen sense of strategy and a polished speaking style, traits that unnerve his opponents.”

    Beyond lavishing praise on Brown’s lobbying abilities, Stolberg had to provide us a bit of information about his arguments against same-sex marriage – and those arguments are hardly polished or keen. They’re Christian Right retreads. Legal recognition of same-sex marriage will threaten religious liberty and undermine the sacredness of marriage, the Christian Right argues.

    For example, Brown said, “When you knock over a core pillar of society like marriage, and then try to redefine biblical views of marriage  as bigotry, there will be consequences.” He then asks will a push to “normalize pedophilia occur.”

    Like other Christianists Brown also comes around to the topic of children – if lesbians and gay men can legally wed they’ll adopt even more children and according to Christian Right groups that’s really bad news for children.

    These arguments regarding the ability of gay couples to raise children and the supposed threats to religious liberty are more than overwrought, they’re inaccurate. But peddling this nonsense has been a high priority for Brown and his allies in the Christian Right community for a long, long time.

    Boston College law school professor Kent Greenfield in a piece for The American Prospect titled “Weird Friends of the Court,” highlights a few of the “friend-of-the-court briefs” lodged by religious groups in both cases – Hollingsworth v. Perry and U.S. v. Windsor – that the Court will hear oral argument in this week.

    Greenfield notes upfront that controversial cases, such as the Perry and Windsor, “bring out the crazies, and crazies can hire lawyers to write a brief. And sometimes the crazies are the lawyers.”

    And then Greenfield gives us some examples. The far-right Thomas More Society declares gay people can’t have sex. “A man and woman, and only a man and a woman, are capable of engaging in sexual intercourse.” Greenfield adds, “Now that’s going to come as a surprise to some people.” No kidding.

    Fortunately there are likely many more serious, thoughtful briefs lodged before the Supreme Court. This blog has noted some of them here and here.

    Georgetown Law Center Professor Nan Hunter and Columbia Law School Professor Suzanne Goldberg have lodged briefs in both cases. During a recent interview with ACSblog, Goldberg briefly described some arguments advanced in those briefs.  

     

  • March 22, 2013
    Guest Post

    by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

    In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.