The words 'Marriage Equality Now' projected onto the
Supreme Court building in Washington, DC on March 26, 2012.
Photo credit: twitter.com/rachnyctalk
The federal Defense of Marriage Act was enacted by Congress in 1996, in response to widespread panic about the possibility of same-sex marriages being allowed in Hawaii. In May, 1993, the Supreme Court of Hawaii ruled that denying same-sex couples the right to marry constituted discrimination on the basis of sex, and, as such, required heightened judicial scrutiny.1 A trial was to proceed in which the state government had to try to prove a ‘compelling state interest’ in the restriction. Suddenly gay marriage became a national issue, for any legal gay marriages in Hawaii would, it seems, have to be recognized everywhere in the country. In frenzied reaction, various states started to pass ‘defense of marriage’ laws or state constitutional amendments to limit marriage and deny any recognition to out-of-state same-sex marriages.2 The same panicked response occurred in Washington. There seemed a strong likelihood of a national constitutional amendment limiting marriage to one man and one woman. What emerged was legislation, the Defense of Marriage Act.
Many supporters believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.3
When Bill Clinton, as President, signed the bill into law in 1996 it had no effect. Same-sex marriage was not legal anywhere in the United States, or anywhere in the world. Hawaiians passed a constitutional amendment allowing the state legislature to restrict marriage, ending the issue there (for the time being). Massachusetts became the first US state with legal same-sex marriage in 2004. Only then did the Defense of Marriage Act start actually restricting the rights of legally married couples. Only then could it be challenged as denying equality to same-sex couples.
Most observers expect that the Supreme Court will strike down the Defense of Marriage Act.4 Two federal appeals courts have already so ruled. The Obama administration has refused to support the legislation in court, calling it an unconstitutional denial of equal rights. His government has eaten way at the Defense of Marriage prohibition by extending military spousal benefits and changing some immigration practices. In July, 2012, the government announced that it would not deport the foreign same-sex partners of Americans, recognizing the relationships as establishing “close family ties,” a sharp reversal of policy.5
Four former senators who voted for the Defense of Marriage Act in 1996 now support the constitutional challenge.6 Bill Clinton, who as president signed the law into force, now argues that it is unconstitutional.7
The second case coming before the US Supreme Court is from California. In 2008 the California Supreme Court opened marriage. A referendum reversed that ruling by amending the state constitution. In 2010 a challenge to the referendum, brought in federal court, opened marriage again. That decision was upheld in February, 2012, by the Ninth Circuit Court of Appeals, treating California as a special case because all substantive rights had already been extended through registration and because some legal same-sex marriages had already been allowed. A new poll shows 61% support for opening marriage in California, with 37% opposed.8
President Obama has taken the somewhat unusual action of intervening in the case (though it is about a state law). His government’s submission includes the following statements:
Tradition, no matter how long established, cannot by itself justify a discriminatory law. Prejudice may not be the basis for differential treatment under law. …
The designation of marriage, conveys a message to society that domestic partnerships or civil unions cannot match.9
The government’s brief suggests what has been called the “eight-state” solution:
It argues that because California and seven other states – Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island – already have given gay couples full legal rights, there is no justification for denying them a right to marry. This is what some lawyers have dubbed the “eight-state solution.” Already nine other states and the District of Columbia authorize same-sex marriage. If the Supreme Court were to adopt the administration’s view, it could raise the total to 17, mostly in the Northeast and on the West Coast. While this would be a significant ruling, it would not require Justice Kennedy [seen as the swing vote] and his colleagues to mandate gay marriage in the red states where majority opinion continues to oppose it.10
Some expect a procedural decision from the Court, ruling that the appellants have no ‘standing’ to argue the appeal. The appellant should be the State of California, but the State refused to appeal the decision. That would be a one-state solution, only applicable to California.
A coalition of religious groups, led by the Jewish Anti-Defamation League, has filed briefs in the two cases, supporting same-sex marriage.11 Sixty leading US companies have as well. Included are Apple, Nike, Facebook, Intel, Xerox, and Cisco. Eighty prominent Republican leaders have filed supporting briefs, including four former governors and two members of Congress.12
1 It is discrimination on the basis of sex, for it is the sex of the prospective partner that determines the discriminatory outcome.
2 By 2001 there were 35 states with such laws.
3 Bill Clinton, It’s time to overturn DOMA, Washington Post, March 8, 2013.
4 Other federal discriminatory laws are gone. The ban on gays and lesbians openly serving in the US military has been ended by Congress, after strong urging from President Obama. In 2011 US embassies in various parts of the world, for the first time, hosted receptions marking the International Day against Homophobia.
5 Julia Preston, Same-Sex Couples Granted Protection in Deportations, New York Times, September 28, 2012. For general discussions of the law and politics of the marriage issue in the US see Michael Klarman, From the Closet to the Altar, Oxford, 2012; David Cole, Getting Nearer and Nearer, The New York Review of Books, January 10, 2013.
6 James Withers, Senators who originally voted for DOMA want the law repealed, GayStarNews, March 2, 2012.
7 Bill Clinton, It’s time to overturn DOMA, Washington Post, March 8, 2012.
8 James Withers, California voters are for gay marriage 2 to 1, GayStarNews, March 3, 2013.
9 Greg Hernandez, President Obama speaks out on getting involved in Prop 8 gay marriage case, GayStarNews, March 1, 2013.
10 David Savage, Public opinion could sway Supreme Court’s ruling on gay marriage, Los Angeles Times, March 1, 2013. “Red states” in the US are conservative and support the Republican Party.
11 Andrew Potts, US religious groups file legal briefs in support of marriage equality, GayStarNews March 3, 2013.
12 Over 60 US companies to support same-sex marriage in US Supreme Court, fridae.asia, February 27, 2012 And see, Business and Gay rights, The Economist, March 9, 2012.