On Tuesday, the Supreme Court heard oral arguments on California’s Proposition 8 and today it is hearing arguments on the Defense of Marriage Act, or DOMA. A decision on Proposition 8 could determine whether California, and possibly other states, can legally ban gay marriage. But, after attending yesterday’s arguments, Reason’s Damon Root says, "The Supreme Court seems to think that the backers of Proposition 8 don't have the standing to bring this case, which would send the case back to the district courts."
A DOMA decision could determine the federal legal status of gay marriages and whether states where gay marriages aren’t recognized must recognize gay marriages granted in other states.
The Prop. 8 case is Hollingsworth v. Perry. The Hollingsworth is Dennis Hollingsworth of ProtectMarriage.com. The Hollingsworth team is arguing for standing based on their dubious contention that children raised by mothers and fathers in stable homes fare better than children raised within other arrangements. Interestingly, the SCOTUS Blog's "In Plain English" column explains how this argument seems to clear the way for gay couples who cannot or do not wish to have children to marry.
If the court rejects that argument for standing, as Root and many experts now predict, the previous decision against Prop. 8 will apply in California and the issue of whether other states may ban gay marriage will remain undecided.
The Perry in the case is Kristin Perry, a mother of four with her partner Sandra Stier. The pair was denied a marriage license in Berkeley. On behalf of the Obama administration, Solicitor General Donald Verrilli Jr. argued that the court should strike down Prop. 8 on the basis that state bans on gay marriage where same-sex civil unions are allowed violate the right to equal-protection enshrined in the Constitution.
As Reason magazine’s Damon Root put it, “In other words, it’s unconstitutional for a state to recognize civil unions while not recognizing same-sex marriage. The federal government took no position on those states that offer neither civil unions nor gay marriage.”
Attorneys Theodore Olson and David Boies argued for Perry based mainly on the contention that "marriage is a fundamental right,” separate from raising children. They also argued for a more demanding test of constitutionality for Prop. 8 based on the contention that gays and lesbians have been frequent victims of discrimination. The Washington Post reports that in a previous challenge, “Stanford political scientist Gary Segura testified that no minority group has been targeted by more ballot initiatives than the LGBT community.”
At issue today is whether discriminating against gay couples at the federal level, as the Defense of Marriage Act does, violates the equal-protection clause of the Fourteenth Amendment. The Justice Department has come to believe that "classifications based on sexual orientation" violate the Constitution's guarantee of equal protection under law.
The face of the DOMA case is Edith Windsor, who had to pay $363,053 in estate taxes because the state would not recognize her marriage to her partner of more than 40 years. In marriages recognized by federal law, surviving spouses are exempt from estate taxes on property. Helen Dale tells their story in a new Reason paper, “An Argument for Equal Marriage”:
[Windsor and her partner] had enjoyed successful careers, one as a computer programmer for IBM, one as a consultant psychologist. Both had paid their taxes, obeyed the law, been model citizens. And yet, when one died, the federal government refused to recognize the marriage that was good enough for Canada and New York, levying tax on the estate of $363,053.
Dale also explains some of the difficulties in defining marriage. She argues that demonstrating that marriage has changed over time makes arguing against equal marriage more difficult:
Typically, equal marriage opponents tend to use the word ‘marriage’ as though it has always and everywhere meant something very similar to that which currently exists across the developed world in the second decade of the 21st century.
Some of the most informative analyses of the beneficial effects of marriage take marriage in its post 1990s form as a given. However, earlier studies—even famous ones like Daniel Patrick Moynihan’s The Negro Family: The Case for National Action, written as it was in 1965—have to be treated with caution. Not only was Moynihan’s study pre-Loving, it was pre Reagan’s California Family Law Act 1969.
Consistent with the constraints on divorce then common, in 1965 a number of US states still had laws against ‘harboring’ (where, if a woman fled her husband and returned to her parents, they could be charged while she might be forcibly returned to the matrimonial home). In those circumstances, many women—black and white—had an incentive not to marry, especially if the male was not a ‘good prospect’.
While many libertarians would like to see the government get out of marriage entirely, the paper points out the unfortunate unlikelihood of marriage’s privatization in the near future. In the current climate, striking down Prop. 8 and DOMA to ensure that states cannot deny people the benefits of marriage on the basis of the couple’s gender is the next best thing.