Along with who will be receiving his mail at 1600 Pennsylvania Ave. come January, one of the most compelling political questions about 2013 is what, if anything, the U.S. Supreme Court will “do” about the volatile and divisive issue of same-sex marriage.
High Court watchers say that the justices were expected to privately discuss marriage equality on Monday past, and at press time for the Florida Agenda there was speculation they could decide as early as yesterday, September 25, as to whether they would take up the constitutional challenge to the Defense of Marriage Act (DOMA), the 1996 federal law that denies financial benefits to gay couples, and possibly a second case relating to California’s Proposition 8.
Although oral arguments and a legal decision by the Supremes wouldn’t be handed down until next year (if at all), the justices are well aware of the political consequences—to both major parties—of even ruminating on the topic six weeks from a presidential election.
The legal “balls” in the air for the court to consider, should they so choose, concern whether the U.S. Constitution’s guarantees of equal protection nullify the California statute, as well as DOMA, which defines marriage as the legal union of one man and one woman.
In New York State, a woman challenged the federal law, saying it selectively and unfairly treats same-gender couples who have been lawfully married in their own states. In a separate but related item, the justices could also decide the constitutionality of Prop. 8.
In the case of the DOMA appeal, Edith Windsor had lived with her partner, Thea Spyer, as a couple in New York since 1967. They married out of state in 2007, at a time when New York State didn’t recognize same-sex marriage. When Spyer died three years ago, she left her estate to Windsor, who was required to pay around $360,000 in federal taxes on the inheritance, because the feds don’t acknowledge her “legal” status—even though New York now permits gay marriage.
Although a federal judge ruled in Windsor’s favor, her attorneys have asked the justices to hear the case now, leapfrogging the standard appeals process. “Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition,” said her lawyer, Roberta Kaplan. “Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime.”
Last spring, a Boston-based federal appeals court struck down a key part of DOMA. The court ruled that the federal government cannot deny benefits to same-sex couples who were married in states where gay marriage is legal.
Enacted in 1996 by a Republican Congress and signed into law by President Bill Clinton, a Democrat, DOMA prohibits federal recognition of marriage equality, and says that states cannot be compelled to recognize such marriages contracted in other jurisdictions.
In the District of Columbia and six states—Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York— marriage between two persons of the same gender is legal. In Washington state and Maryland, similar laws have been enacted, but voters have a chance to affirm or reject these measures in ballot initiatives this November (see the related story in this issue’s POLITICAL DESK, Page 11).
Five states—Delaware, Hawaii, Illinois, New Jersey, and Rhode Island—have legalized civil unions. Four—California, Nevada, Oregon, and Washington state—have established domestic partnerships, which provide many of the same rights as marriage, although in the last instance, lawmakers passed a full marriage law which is the subject of a November voter referendum (see above).
Wisconsin provides limited benefits under domestic partnership laws, and Maine voters will decide in November whether to maintain similar benefits, or go for the Full Monty for such couples (see POLITICAL DESK story, Page 11).
The remaining 33 states, including Florida, offer no such provisions. There are three other appeals that challenge the 1996 federal law, including 17 married or widowed men and women who are suing for their federal benefits and recognition. The high court could decide to wait until the appeals process has been exhausted before allowing a full review by the justices.
The two eggs in the Supremes’ basket concern separate, bi-coastal cases. In August, a federal appeals court ruled against the California prohibition of same-sex marriage, arguing that it unfairly—and unconstitutionally—singles-out gays. The three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Proposition 8 “works a meaningful harm to gays and lesbians” and violates their 14th Amendment protections.
In 2008, the California Supreme Court ruled that gay marriages were legal, opening the floodgates for 18,000 gay couples to obtain marriage licenses. A subsequent ballot initiative that passed by 52 percent of voters put the kibosh on further same-sex weddings. It also put California in the position of being the only state to first permit, and then prohibit, marriage equality. The three-judge panel of the 9th Circuit didn’t decide whether or not gays have the right to marry, they ruled on the voters’ right to make such calls.
Which brings us to the larger question: What will the U.S. Supreme Court do? The justices may decide that a fundamental constitutional right is threatened, and strike down the laws of states that only permit one-man one- woman matrimony. Or they might determine that states must recognize same-gender nuptials performed in other jurisdictions, while letting them keep their own laws intact. They may also wait out the full process of judicial appellate review (which lessens the likelihood of a final ruling in the Windsor decision during Edith Windsor’s natural lifespan).
The Supremes may also decide to wait out the demographic clock, under the assumption that the law will eventually “right” itself, with theoretical passage of the Respect for Marriage Act overturning DOMA, and obviating the necessity of a high court ruling.
What is certain is that both sides will have the first Monday in October—when the court returns from its summer recess—clearly marked on their own calendars.