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.
With regard to DOMA, most pundits seem to agree that DOMA's days are likely numbered. Section 3 of DOMA, which essentially erases the valid marriages of same-sex couples for purposes of all of federal law and reverses 200 years of federal deference to state determinations of marital status, has not enjoyed a winning streak recently. Every recent court that has opined on DOMA has found it unconstitutional, including the First and Second Circuits; the Obama administration has declined to defend DOMA in court; and 156 House Representatives and 32 Senators have co-sponsored the Respect for Marriage Act, which would repeal the federal recognition portion of DOMA.
With regard to Proposition 8, there seems to be more uncertainty. In the victory column, will the LGBT community finally have its Loving v. Virginia with a broad win in Perry, leading to marriage equality across the country? Or will the Court adopt a Ninth Circuit-like reasoning, which applies only to California because of the unique circumstances by which Proposition 8 stripped marriage away? Finally, the Court could limit a victory to the handful of states that provide civil unions or domestic partnerships but not marriage, under the theory that withholding solely the word "marriage" reflects only disapproval of gay and lesbian individuals, which under our Constitution is not sufficient to survive equal protection.
In the other column, some wonder if it is too early for the Court to take the plunge on marriage equality. Could Perry turn into another Bowers v. Hardwick, where a devastating loss set back the LGBT movement for over a decade? Even if we won, might a victory in Perry come to soon before public opinion support, as many believed Roe v. Wade did?
Finally, complicating things further is the fascinating question of whether the Court could avoid a decision on the merits in either or both cases entirely. In its orders granting certiorari, the U.S. Supreme Court added questions related to standing in each case, effectively leaving all its options open. In the Perry case, the Court asked for briefing on whether the proponents of Proposition 8 have standing to appeal the district court's decision overturning Proposition 8, after the state government refused to appeal. In the Windsor case, the question is which branch of government (Department of Justice or the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which took up defense of DOMA after DOJ refused to defend), if any, has standing to appeal at this juncture. And if the district court decision overturning Proposition 8, or the Second Circuit decision overturning DOMA, were to stand, what would that mean technically?
There seems to be no shortage of opinions or commentaries on what the Court might do. But, at the end of the day, there are at least two important points that we know for sure and that unfortunately gets lost under all the noise.
First, real families and individuals are being harmed by DOMA today. Those people include Edie Windsor, the plaintiff in the Windsor case, who has to pay more than $300,000 in federal estate taxes after the death of her wife, which she would not have to pay if she had been married to a man. They include Mary Richie, a state police officer who is being deprived the security of knowing that her wife Kathy Bush would receive her survivor benefits should anything happen to her in the line of duty. From the ability to file taxes jointly to Social Security survivor benefits to family medical leave, DOMA profoundly and negatively impacts thousands of lesbian and gay married couples and their ability to support and protect their families and children.
Second, with the possibilities of a win, loss, or draw lurking in the background of these cases, it is even more important that we continue to grow support for LGBT rights across the nation, both at the federal level and state level. There is much work being done to add Delaware, Illinois and Rhode Island, among other states, to the marriage equality column in the next few months. It is still legal to fire a person for being LGBT in over half the states, yet federal employment discrimination is still stalled in Congress. And we have an epidemic of bullying against LGBT youth and violence against transgender individuals that deserves more attention and more resources.
We can spend the next few months trying to predict the future, or we can continue the hard work of winning more states, passing more laws, and persuading more hearts and minds that LGBT individuals and their families are deserving of the same dignity, respect, and protections as anyone else. While I am just as guilty as the next person of the former at times, I ultimately prefer the latter.