DOMA and Prop 8 Wrap Up: History, Cases, and Predictions
Headline Photo via Jay Squires
This week, the United States Supreme Court opened up its floor to an in-depth discussion on the issue of same-sex marriage beginning with Proposition 8 on Tuesday followed by DOMA on Wednesday. This was the Supreme Court’s first major examination of gay rights in almost a decade.
Here is a breakdown of the cases, the history, and finally, some predictions that have started to swirl around. We wont get an outcome from this arguments until June, but reading this should bring you up to speed on the issue.
Current SCOTUS line up
Prop 8 was first passed in 2008 to ban same-sex marriage in California. In the current hearing, Theodore B. Olson and Charles J. Cooper (both previously serving in President Ronald Reagan’s office) represented both sides of the issue before 9 Justices in a battle of equality vs. tradition. Cooper argued that marriage, in its traditional definition, was a gender-based establishment that does not at all include same-sex couples. On the opposition, Olson believed marriage to be a personal right and is “part of the right of privacy, association, liberty, and the pursuit of happiness.”
The hearing brought up serious, thought-provoking questions about gender discrimination and the significance of marriage but also, there were a few statements that evoked humor in the court. After Kagan talked about using marriage to regulate procreation, saying same-sex couples do not deserve marriage rights because of their inability to procreate, Justice Kagan joked that in marriages between 55-year-old couples, “there are not a lot of children coming out of the marriage.” the comment incited laughter throughout the courtroom. The overall proceeding lasted roughly an hour.
In 2010, Prop 8 was repealed at the state level in the case of Perry v. Schwarzengger, ruling that it violated the Due Process and Equal Protection clauses of the constitution. It was only two years later that this decision was overturned, once again making same-sex marriage unconstitutional in California. The actual case and ruling won’t be held until late June of this year in Hollingsworth v. Perry.
The fight for marriage equality at the Supreme Court doesn’t end at Prop 8. The Defense of Marriage Act (DOMA) is a federal law signed in 1996 by President Bill Clinton (who has since turned against it) that defines a marriage as a union between a man and a woman for all federal and interstate commerce purposes. This section of the law, Section 3, restricts federal benefits to only opposite-sex marriages; benefits include insurance, social security, immigration, tax returns and over a 1,000 more.
Eight Federal Courts have found section 3 of DOMA to be unconstitutional, one of those cases, U.S v. Windsor was selected to be heard by the Supreme Court. Edith Windsor was forced to pay $363,000 in federal estate tax after her partner, Thea Spyer, passed away in 2009. Had Edith been in an opposite-sex marriage, she would have been eligible for an estate tax exemption, paying zero dollars instead.
The group defending DOMA, the Bipartisan Legal Defense Group (BLAG), is headed by Paul D. Clement. Clement is George W. Bush’s former solicitor general. Clement’s argument is that the federal government doesn’t invalidate any state laws allowing gay marriage, instead it ensures that federal benefits are distributed equally throughout the states. Clement states that one reason why DOMA was passed was for “uniformity”, so that the federal definition of marriage would be the same throughout the states. When Justice Sonia Sotomayor questioned the right of the federal government in concerning itself with the definition of marriage, Clement answered that the federal government “has a lot of programs that could give states an incentive to” broaden the definition of marriage.
Much of the attention was focused on Justice Anthony M. Kennedy, who is viewed as a key swing vote and is known to support gay rights in the past. During the hearing, Kennedy showed a lot of hostility towards the Defense of Marriage Act. He countered Clement’s argument by saying “the federal government is intertwined with citizens’ daily lives” and has “a real risk of coming into conflict with the state’s ability to regulate marriage”.
The DOMA case gets more complicated, however, because the Obama administration had declined the position to argue DOMA (and is also absent in the Prop 8 case). About a week prior, the administration released a statement calling Section 3 “unconstitutional” and the act “cannot be justified as substantially furthering any important government interest”.
The Supreme Court was skeptical in their legal ability to review the case and the Justices spent almost an hour determining whether the case had properly landed in the Supreme Court to begin with. The first big question was that, if the government (Obama’s Administration) had already declared DOMA unconstitutional then was there any real controversy before the court?
The second concern was whether BLAG had legal “standing” to defend it. Justice Roberts was suspicious, calling it “totally unprecedented” and “something we have never before” seen.
The complex nature of standing for DOMA and Proposition 8 is the first obstacle to clear. Before a ruling can be made, the Court will have to determine whether or not they can even continue reviewing the two cases.
Both cases won’t be heard or decided until the end of June, but politicos and talking heads are already making predictions – here are some of the possible outcomes from other media outlets to help keep us on the edge of our seats until then:
Douglas Kmiec – Retired U.S Ambassador, Author, American Legal Scholar via the Huffington Post
“I see the outcome in favor of same-sex marriage as 6-3, with the Chief Justice writing the opinions — and writing them narrowly.” …“Formally, DOMA would fall as unnecessary federal discrimination against gay couples. Proposition 8 would tumble because California is in essence trying to be two-headed — simultaneously saying in Prop 8 the only marriage that counts is one between a man and woman while the state family code through its generous California domestic partner law says the exact opposite.”
Paul Hogarth – Managing Editor, Beyond Chron via Huffington Post
“I predict they will rule Prop 8 unconstitutional by applying the Romer precedent and sustaining the Ninth Circuit decision, i.e., Prop 8 was unique because it “took away” a right that same-sex couples already had.”
“DOMA is more likely to be repealed, paving way for full marriage equality”
Nina Totenberg via NPR
“There seem to be four solid votes on the Supreme Court — and possibly a fifth — to strike down the Defense of Marriage Act that bars federal recognition of same-sex marriages, “… “It became clear that four “liberal” justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — would vote to strike down DOMA. It’s also likely that the four “conservatives” — Chief Justice John Roberts and Antonin Scalia, Clarence Thomas and Samuel Alito — would vote to uphold the law. The “swing” vote, Anthony Kennedy, appeared to lean toward striking down the law…. Among Kennedy’s concerns: that the act infringes on states’ rights to define marriage and affects the daily lives of gay couples because it touches hundreds of federal laws.”
Jeffrey Toobin via CNN
“DOMA is in trouble.”… “And I think it’s in trouble because [Justice] Anthony Kennedy was repeatedly concerned that the Defense of Marriage Act violates states’ rights,”…“He was clearly very concerned that the Defense of Marriage Act was invading the province of the states to define marriage. That’s a state function usually. And that would certainly be suggesting that he was going to strike down the law. And certainly the other liberals — the four Democratic appointees looked like they were going to vote to strike it down.”
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