marriage equality

  • January 9, 2013

    by Jeremy Leaming

    This year marks major anniversaries of several landmark Supreme Court opinions, including two that advanced liberty and equality. In January 1973, the high court in its Roe v. Wade opinion trumpeted liberty by striking a Texas law banning abortion. Equality and liberty were also advanced in June 2003 when a majority of the justices in Lawrence v. Texas invalidated a law targeting sex between consenting adults of the same gender.

    On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.” (See below for more information about the gathering, including a tentative conference schedule.)

    In striking down a state law banning abortion, Justice Harry Blackmun declared that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    The Roe court, however, did not find this right to be absolute, and subsequently we have seen an erosion of this liberty in a steady and disconcerting fashion by courts and lawmakers over the years. Indeed a string of states over the past few years has ratcheted up efforts to make it vastly more difficult for many women, especially the young and poor, to have abortions. State lawmakers have also pushed laws requiring physicians to lecture women on the alleged dangers of abortions and/or undergo ultrasounds all in an effort to slow the process or dissuade women from abortions.

    In 2003’s Lawrence, the majority of the court also advanced liberty by knocking down a Texas law that criminalized sex between people of the same gender. And like Roe, the majority found that liberty is broad enough to prevent the government from intruding upon intimate relations of lesbians and gay men. Indeed, Justice Anthony Kennedy writing for the Lawrence majority, citied the high court’s 1992 Planned Parenthood v. Casey opinion upholding Roe. In Casey, the Court wrote, “These matters, involving the most intimate personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

    Kennedy’s Lawrence opinion also advanced equality, saying the challengers of the Texas law persuasively argued that their equal protection rights were subverted by a law that criminalized an intimate part of their relationships.

  • December 20, 2012
    Guest Post

    by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

    On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

    Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  \Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross. 

  • December 14, 2012
    Guest Post

    by Janson Wu. Wu is a staff attorney with Gay & Lesbian Advocates & Defenders (GLAD) in Boston and the recipient of ACS’s 2012 David Carliner Award. He is also co-counsel in two of the DOMA challenges (Gill v. OPM and Pedersen v. OPM). While those cases were not granted cert by the U.S. Supreme Court, he remains committed to doing whatever it takes to ensure that DOMA is no longer the law of the land.  


    The predictions surrounding the U.S. Supreme Court's decision last Friday to grant certiorari in two LGBT cases began long before conference day. For months, court-watchers wondered whether the Court would grant review in the Perry case challenging the constitutionality of California's Proposition 8, which limits marriage to straight couples. Or would the Court deny certiorari and leave the Ninth Circuit’s narrowly crafted decision intact, which overturned Proposition 8 only without inflicting collateral damage to the other 30 state constitutional amendments banning marriage for loving and committed gay couples.

    In contrast, many felt confident that the Court would review one of the four cases challenging the federal Defense of Marriage Act (DOMA).The trickier question was which case would the Court take.

    In the end, the Court agreed to hear the Proposition 8 case, and choose the ACLU’s Windsor case as its preferred vehicle for reviewing the constitutionality of DOMA.

    Now the real betting begins.

  • December 10, 2012

    by Jeremy Leaming

    Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

    Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

    As The New York Times’ Adam Liptak notes public opinion in favor of same-sex marriage may be ahead of where a majority of the Roberts Court is on the matter. And, he notes that the high court’s decision to review both the Ninth Circuit Proposition 8 case and Second Circuit’s DOMA case “has some gay rights advocates bracing for a split decision.” Liptak says the high court could invalidate the so-called Defense of Marriage Act or DOMA on grounds that Congress overreached and strike the Ninth Circuit’s opinion on Prop. 8, holding that the Constitution does not require states to recognize same-sex marriages.

    Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

    While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

  • December 7, 2012

    by Jeremy Leaming

    As widely expected the U.S. Supreme Court will wade into the battle for marriage equality announcing today it would consider the constitutionality of state and federal bars against same-sex marriage.

    The New York Times’ Adam Liptak noted that the Court’s docket now includes a lot of cases centering on “the meaning of equality ….” The high court’s docket already includes cases involving race-conscious university admissions policies and an integral enforcement provision of the Voting Rights Act.

    The high court will review a decision striking California’s Proposition 8, which yanked marriage equality rights from lesbians and gay men in the state, and an opinion from a federal appeals court that invalidated a provision of the so-called Defense of Marriage Act.

    Earlier this year, the U.S. Court of Appeals for the Ninth Circuit ruled that California’s Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority, Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”

    The high court also said it would review U.S. v. Windsor, a case out of the Second Circuit. Earlier in the fall, the U.S. Court of Appeals for the Second Circuit invalidated a provision of the so-called Defense of Marriage Act, a law enacted by the Clinton administration. The Obama administration announced earlier in its first term that it would stop defending DOMA in court. The Bipartisan Legal Advisory Group of the U.S. House of Representatives intervened to help defend DOMA.