Supreme Court to Wade Into Marriage Equality Debate

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.

The three-judge panel of the Second Circuit found that Sec. 3 of DOMA stating that the federal government only recognizes marriages between men and women violates the equal protection clause of the Fourteenth Amendment. The Second Circuit said that section of DOMA could not survive “intermediate scrutiny,” meaning the discriminatory treatment of DOMA must be reviewed by the court with “heightened scrutiny.” The government failed to carry its burden of explaining why a grouping of people for discriminatory treatment did not violate the equal protection clause.

The Second Circuit case involves the marriage of Edie Windsor and Thea Spyer. The couple had been together for more than 40 years when they married in Canada and returned home to New York where their marriage was recognized. But the marriage, because of DOMA, was never recognized by the federal government and when Spyer died in 2007, the federal government required Windsor to pay enormous inheritance taxes. With the help of the New York Civil Liberties Union, Windsor lodged a lawsuit in federal court arguing that DOMA violated the equal protection clause.

In statement about today’s announcement issued by the NYCLU, Windsor said, “When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay marriage couples should be treated equally, and not like second-class citizens. While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

Lambda Legal Executive Director Kevin M. Cathcart, in a post for the group’s blog, blasted DOMA as an “outrageous law” that has “been hurting same-sex couples and their families for 16 years ….”

Polling shows growing support for same-sex marriage in America and several states on Election Day passed measures backing marriage equality.