The Supreme Court of the United States held hearings March 26 and 27 on the constitutionality of California’s Proposition 8 and Section 3 of the federal Defense of Marriage Act. The proceedings yielded few surprises and few definitive outcomes.
The repeal of Section 3 of DOMA would be a landmark SCOTUS decision and would afford gay couples in states with marriage equality many of the federal rights they have previously been denied. It would help narrow the discrepancies between LGBT rights at the state and federal levels and, over time, simplify the grueling processes we endure when completing banal tasks straight couples take for granted, such as filing taxes and attaining employee benefits.
Though striking down Section 3 of DOMA would be an extraordinarily positive reflection of the growing support for LGBT rights in the United States, its repeal would ultimately have little effect on Pennsylvania law; repeal would not automatically mean that we will see marriage equality in all 50 states. The court will likely repeal the act but still permit states to ban gay marriage on an individual level, which leaves Pennsylvania free to continue to legally discriminate against LGBT couples and individuals.
The court also heard arguments on whether Prop. 8, a California ballot proposition passed in November 2008 that defined marriage as between one man and one woman, is constitutional. In August 2010, Hollingsworth v. Perry went before a federal court that ultimately found Prop. 8 to be unconstitutional, a ruling upheld by the Ninth Circuit Court of Appeals.
The arguments for Prop. 8, spearheaded by attorney Charles Cooper, rested primarily on an antiquated and naïve notion of “responsible procreation.” Cooper questioned same-sex couples’ ability to and method of conceiving and raising children, which may differ from opposite-sex couples. Justice Alito further added to this enlightened reasoning by asserting that gay marriage is simply a social experiment from the Netherlands that came about in 2000 and that it requires more research before determining whether or not it is beneficial. (Because we in today’s world know that all straight couples keep sex, marriage and family clean and sacred.) And when Justice Kagan asked Cooper, “If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage … So why is that different?” he had no response.
Based on the Prop. 8 hearing, SCOTUS will likely decide that it cannot yet make a determination. While each justice’s stance on LGBT equality — whether favorable or unfavorable — is generally known, the panel is likely to rule that it is too soon for the court to tend to this matter. The court can declare that the case has no standing because the Prop. 8 ballot petitioners are not the proper parties to defend the measure. Moreover, it could rule that marriage is a state issue, and California has spoken. Either outcome likely leaves California with marriage equality come June.
Seven different courts have now found DOMA to be unconstitutional, and SCOTUS is now considering that question with U.S. v. Windsor. In 2009, Thea Spyer, the wife and 40-year-long partner of LGBT activist Edith Windsor, died. Though couples in “traditional” marriages can obtain their spouses’ inheritance tax-free, Windsor was forced to pay estate taxes totaling more than $363,000.
Harvard Law professor Vicki Jackson was appointed to argue that the Supreme Court did not have jurisdiction over the case at all. Under President Obama’s administration, the government will no longer defend DOMA. In a case of first impression involving the federal government, both the plaintiff and the government were in agreement that DOMA is unconstitutional, leaving the justices perplexed as to why the case was even before it. And, similar to the Prop. 8 case, it is clear that several justices are concerned if they have the authority to render a decision on a matter that has traditionally been a state issue. Taking the case could, as swing vote Justice Kennedy said, question “whether the federal government has the authority to regulate marriages.”
If the court decides not to dismiss the case on “standing” grounds, as with Prop. 8, then it may also assert that the federal government overstepped its bounds by meddling in an issue that states have historically decided.
It is likely that the LGBT community will get two “wins” from these cases: By June, California will likely have marriage equality, and Section 3 of DOMA will be struck down. But, both of these victories may come without the Supreme Court definitively stating that marriage is a fundamental right to all Americans, gay or straight. It would be a large win on the national level, but without considerable long-term advocacy, there will be little change in Pennsylvania.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Send Angela your legal questions at [email protected].