The reactions have been swift from both sides regarding the decision by the Supreme Court to take on same-sex marriage. Both sides have largely stated that they predict that their side will come out victorious; however, the pro-LGBT groups may be on better footing with regards to that given that the current split on the court is four supporting LGBT rights and three vehemently opposed. Two potential swing votes exist in Chief Justice John Roberts and Justice Anthony Kennedy. Roberts is a potential swing vote due to his tendency to be more flexible in hearing Conservative arguments about various issues including things like Obamacare.
The Court is taking on Windsor v. United States, which covers DOMA, and the case taking down Prop 8 out of California.
Senator Kirsten Gillibrand from New York, a cosponsor of the Respect for Marriage Act, stated that “Today’s decision to hear these two cases on same-sex marriage in the nation’s highest court is truly historic. Already, first and second circuit federal appeals courts have deemed DOMA unconstitutional, and I am pleased the Supreme Court will soon have its voice heard on this important issue. Regardless of the Court’s ultimate decision, Congress will need to do its job too. It is well past time for the federal government to recognize the marriages of all loving and committed couples and finally put the discriminatory DOMA policy into the dustbin of history.”
The Civil Rights Agenda executive director Anthony Martinez stated that “This is an incredibly significant and historic moment. The Supreme Court could rule on whether the federal definition of marriage is valid, as set forth in Section three of DOMA which currently defines it as only between a man and a woman, and whether the Equal Protection Clause of the Fourteenth Amendment applies to Proposition 8 in California. Both decisions could have incredible implications for the rights of gays and lesbians to enter into marriage in the United States. With that said, the courts orders are complex and could allow them to side step ruling on the merits of either case, so we must continue to push for equal marriage rights in Illinois.”
Rick Garcia, Director of the Equal Marriage Illinois Project, said “Although we are encouraged by the Supreme Court’s decision to review these laws, this does not have an effect on our work to pass equal marriage here in Illinois. We are very close to passing equal marriage legislation in Illinois and we must continue forward. The Supreme Court’s actions cannot be determined until the justices rule which will most likely not be until the summer. We must continue to work to pass this legislation so that if DOMA is invalidated, same-gender couples and families in Illinois will be able to access federal benefits.”
It should be noted that the Supreme Court has never ruled with regards to whether or not there is a guaranteed right to marriage, though in Loving v. Virginia, the majority opinion did say that marriage is a fundamental right. Loving v. Virginia centered on the fact that the Constitution requires each state to respect the contracts entered into inside the other states.
Family Equality Council Executive Director Jennifer Chrisler stated “The Supreme Court’s decision to review these cases represents an historic and significant step forward in the fight for marriage equality for all American families, but especially the more than one million loving and committed parents who are lesbian, gay, bisexual and transgender in this country who are raising more than two million children. While our families are already bound together by love, there is no denying that the freedom to marry will strengthen them. Denying some American families marriage also denies their children some of the basic protections they need in life as well as a sense of enduring security and stability. We know that according to the 2010 U.S. Census, one-quarter of all lesbian and gay couples throughout the United States are raising children. We look forward to the Supreme Court’s decision and the day when parents in all states will be able to give their families the strong legal and economic foundation that only marriage can provide.”
OutServe-SLDN Executive Director Allyson Robinson said about the SCOTUS decision that “The Supreme Court has rightly decided to address the constitutionality of the so-called Defense of Marriage Act (DOMA), and we are confident that at the end of this process, this law – just like “Don’t Ask, Don’t Tell” – will be relegated to the dustbin of history where it belongs. The harm done to our brave service members and their families, and to our national security, by the Defense of Marriage Act is unconscionable. These are American patriots making the same sacrifices, providing the same service, and taking the same risks as their straight counterparts. They should not be treated as second class citizens.”
Robinson went on to say that “The bravery of these plaintiffs and the tenacity of the American Foundation for Equal Rights and its founder Chad Griffin have been key catalysts in the movement we have seen across this nation on marriage equality. Today, we honor their work, applaud their leadership, and vow to keep up the fight until every American enjoys the freedom to marry under the law.”
California State Senator Mark Leno said in regards to the announcement that “I am hopeful and encouraged about today’s decision from the U.S. Supreme Court to review the Proposition 8 case, which is one of the most significant equal rights issues to come before the court in many decades. For the past four years we have argued that Proposition 8 is not only unconstitutional, but that it also violates the basic principles of respect, dignity and validation that every American deserves. I am confident that the Supreme Court will reaffirm these fundamental freedoms and uphold that a person’s right to be treated equally does not vanish simply because of who they are or whom they love.
“The momentum for marriage equality has never been stronger in our country. We have support from President Obama, recent victories at the ballot box, and polls that show a majority of Americans are with us. In addition, federal courts continue to strike down laws that discriminate against lesbian, gay, bisexual and transgender people. I am convinced our triumphs will continue.”
National Center for Lesbian Rights Executive Director Kate Kendell said “Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children. Without a doubt, Ted Olson, David Boies, and our colleagues at the ACLU will make the strongest possible case for equality before the Court. We are confident the Supreme Court will strike down DOMA once and for all next year, and, after four long years, will finally erase the stain of Proposition 8 and restore marriage equality to California couples. The day is now clearly in sight when the federal government, the State of California, and every state will recognize that same-sex couples and their children are entitled to the same respect and recognition as every other family.”
The Williams Institute issued the following analysis:
The U.S. Supreme Court’s review of the Defense of Marriage Act (DOMA) and California’s Proposition 8 later this term could have far ranging economic and regulatory implications for same-sex families, according to data from the Williams Institute.
“Given that multiple circuit courts have found DOMA’s Section 3 unconstitutional, the Court has an important opportunity to provide nationwide answers regarding the validity or invalidity of this federal statutory provision, said Nan Hunter,” Legal Scholarship Director, Williams Institute, and Associate Dean and Professor of Law and Georgetown University Law Center.
DOMA & Federal Recognition of Married Same-Sex Couples:
United States vs. Windsor raises questions about federal recognition of same-sex couples legally married under state law. Of approximately 645,000 same-sex couples nationally, at least 20% live in a jurisdiction where they can marry. From 50,000 to 80,000 of same-sex couples in the United States are legally married, and more than 85,000 are in civil unions or registered domestic partnerships. If federal recognition of same-sex couples comes as a result of the court’s review, changes to federal policies will have a profound impact on these couples.
Changes to federal leave, tax and entitlement policies:
Surviving spouses of same-sex couples would gain access to partners’ Social Security benefits, which could add over $5,700 to the monthly income of the surviving spouse. See study.
In situations similar to that of the plaintiff in the Windsor DOMA case that the Supreme Court has decided to hear, same-sex couples who are affected by the estate tax would no longer be subject to a greater tax burden upon the death of their spouse than similarly-situated different-sex married couples. See study.
Same-sex couples working in the private sector would no longer have to pay 11% more than different-sex couples in taxes for employer-sponsored healthcare. See study.
Same-sex spouses of federal employees would be eligible for employee benefits that are currently provided to employees with different-sex spouses. See study.
Proposition 8 and State Recognition of Same-Sex Couples
Research suggests the court’s decision to review Hollingsworth v. Perry, the federal challenge to California’s Proposition 8, could impact thousands of same-sex couples.
“There has been extensive research on the lives and experiences of LGBT people and their families. This research has been critical in legal analysis of disparate treatment of same-sex couples under the law, including legal analysis by the federal trial court that ruled Proposition 8 unconstitutional in the case that the Supreme Court is now reviewing,” said David Codell, the Williams Institute’s Visiting Arnold D. Kassoy Senior Scholar of Law and Legal Director.
There are nearly 100,000 same-sex couples living in California. See study.
Over 24,000 same-sex California couples would be likely to marry within the next three years if permitted to do so. [Williams Institute Same-sex Couple Survey, 2010]
If California recognized same-sex marriage, 35% of same-sex couples in the U.S. would live in states where they can marry; and 28% of the U.S. population would live in states where same-sex couples can marry.
Extending marriage to same-sex couples has a positive economic impact. Wedding spending in Maine, Maryland and Washington could generate over $166 million in the first three years. In California alone, weddings could generate almost $290 million in new spending over three years.
Showing a lack of understanding regarding the implications of the case, the National Organization for Marriage issued these statements from NOM Chairman John Eastman:
“We believe that it is significant that the Supreme Court has taken the Prop 8 case. We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”
“Had the Supreme Court agreed with the lower courts’ decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case. It’s a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco at both the trial court and appellate levels. It’s worth noting that Judge Reinhart is the most overruled judge in America. I think this case will add to his record.”
“We are pleased that the Supreme Court will review lower-court decisions that invalidate the judgment of the U.S. Congress to define marriage as one man and one woman. It’s not the job of federal judges to substitute their views for the policy judgments of the people’s duly elected representatives. We believe the U.S. Supreme Court will overturn this exercise in judicial activism and stop federal judges from legislating from the bench on the definition of marriage. We’re confident the Court will uphold DOMA.”
The Supreme Court does not necessarily take up cases just because they plan to overturn it. They may feel that there is a Constitutional issue that goes well beyond the original state involved and a need to rule on the issue across the board. The judges may be using Prop 8 in order to rule on the constitutionality of bans on same-sex marriage.