The Key to Gay Marriage is in the 14th Amendment

On Friday, December 7, the justices of the U.S. Supreme Court agreed to rule upon two separate cases involving marriage equality. The appeals concern the two most famous—and egregious—examples of modern “Jim Queer” legislation: the Defense of Marriage Act (DOMA) and California Proposition 8.

These laws and others on the state level have formed the basis of the separate but equal (and more often not equal) framework for modern American marriage laws, with some states (including three just last month) and the District of Columbia taking the “Some Like It Hot” approach, permitting full access to legal marriage and its benefits, while 31 others—and Uncle Sam himself—forbidding its recognition.

What the Supremes did NOT do last Friday was agree to rule on whether the U.S. Constitution guarantees a right to same-sex marriage. Rather, the justices will decide whether such measures as DOMA and Prop 8 deny homosexual citizens their rights under the Equal Protection Clause of the document’s 14th Amendment.

If a majority of justices agree that such is the case, the ruling would be tantamount in some respects to the court’s decision in the landmark 1954 case of Brown v. Board of Education, which declared as unconstitutional state laws that established “separate but equal” public schools for black and white students.

Another decision that informs that arguments of gay marriage advocates is a less familiar Supreme Court ruling, Loving v. Virginia in 1967. In that decision, the court under Chief Justice Earl Warren found anti-miscegenation laws (which banned interracial marriages in more than a dozen states) to be unconstitutional, despite the fact that at that time much of society looked down upon such unions.

Should the Roberts Court interpret ‘14’ in the same “spirit” as the Warren Court did in 1954 in 1967, it will trample over the central thesis used by opponents of marriage equality, who claim they are merely defending the traditional definition of a union between one man and one woman. (That definition fails to account for the more than 100,000 same-sex marriages that have taken place in the U.S. since 2004.)

In a similar fashion as the Warren Court in the Brown decision, Chief Justice John Roberts & Co. must here decide how equal protection is applied to cases involving the sexual orientation of a “married” (or seeking-to-be-married) couple.

There is reason for both sides to crow their optimism, since at this point it isn’t clear how the justices will rule in this quinella of cases. The opinions in the last two gay rights decisions of the high court (Romer v. Evans in 1996, and Lawrence v. Texas in 2003) were both written by Justice Anthony Kennedy.

Although both of those rulings dramatically increased the law’s recognition of LGBT rights, experts cannot predict where Kennedy will fall in the deciding upon the DOMA and Proposition 8 appeals.

Much as the Warren Court did in 1967 in striking down racist marriage laws, Kennedy’s opinion in the 2003 Lawrence decision found that society’s moral disapproval of a practice isn’t sufficient reason to uphold a law that bans it.

In a rash of recent lower court rulings in Arizona, California, Connecticut, Massachusetts, and New York (most of them written by federal judges appointed during the administrations of both Bush-41 and Bush-43), DOMA and other laws that draw differences between straight and gay marriage have been struck down.

Of the two cases up for a high court decision (which is likely to come down in June), the justices have agreed to take up the appeal of an elderly New York City woman, Edith Windsor, who is challenging DOMA’s prohibition on married same-sex couples from receiving over 1,100 federal benefits—including spousal participation in health insurance coverage, joint filing of federal tax returns, and Social Security survivor payments, among many others—that are already guaranteed to straight married couples.

Windsor’s lawyers argue that Congress had no valid reason when it passed DOMA in 1996 to deny equal federal benefits granted to heterosexual married couples to similarly-situated gay spouses whose marriages are recognized in states where it is legal.

In the case of the Proposition 8 appeal, the justices must rule whether California’s 2008 statewide voter-approved referendum violates the equal protection rights of gay couples trying to get married. That referendum—which passed by a 52 to 48 percent margin—was a reaction to the California Supreme Court decision that the state constitution recognized the right of same-sex couples to marry.

In the five months after that ruling, about 20,000 marriage licenses were issued to same-sex couples in California, while opponents of gay marriage mobilized to place the matter up for a popular plebiscite.

When a number of same-sex couples challenged the voter-approved law in federal court on the grounds that the referendum violated their constitutional right to marry, a federal judge declared it unconstitutional, and on appeal, a panel of the 9th U.S. Circuit Court of Appeals also ruled against Proposition 8.

However, instead of deciding that the U.S. Constitution provides a right to gay marriage, the appeals court found the statewide initiative violated the rights of gay couples by taking away a right that had already been granted by the California Supreme Court, thus denying them equal protection.

In his dissent to the 6 to 3 Lawrence v. Texas ruling, Justice Antonin Scalia wrote, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

The question remains to be answered if that structure—much like the one that for centuries supported racist marriage laws—is ready to be finally and permanently dismantled.