THIS week may very well be the moment that will change the way America defines marriage.
The Supreme Court has been reviewing challenges to both California’s Prop 8 and the nationwide restrictions placed on gay couples under the 1996 Defense of Marriage Act (DOMA).
At the core of these two landmark gay marriage cases is the principle stipulated in the Declaration of Independence of America: “All men are created equal.”
This is the underlying spirit of the equal protection law in the US Constitution.
In the Hollingsworth vs. Perry case filed by the American Foundation for Equal Rights, gay rights advocates are hopeful the nation’s highest court will not only strike down Proposition 8, but rule that no state can enact laws that discriminate against gays and lesbians.
There are about 18,000 same-sex couples who legally tied the knot in California in May 2008, when the state Supreme Court legalized gay marriage.
But in November of 2008, voters in California passed Proposition 8 that outlawed same sex marriage.
In Windsor v. United States, the Supreme Court is weighing whether the federal Defense of Marriage Act (DOMA), which limits all federal marriage benefits to opposite sex couples, violates the constitutional rights of same-sex couples.
DOMA was signed into law in 1996, and defined marriage as a legal union between one man and one woman.
To better appreciate the significance of the Supreme Court’s decision, let me share with you this primer written by Louis Jacobson of Politifact.com.
The key issues
Is there a fundamental right to marry?
Those who oppose marriage for same-sex couples argue that society has an interest in drawing distinctions because married couples can procreate. Supporters of same-sex marriage reject that view.
“I think a critical line of questions, perhaps from Justice Anthony Kennedy, about the purpose of marriage, will shed a great deal of light on the court’s thinking about the cases,” said Chapman University law professor John Eastman, who has filed amicus, or friend-of-the-court, briefs siding with the supporters of DOMA and Prop 8.
What is the proper balance in powers between the federal government and the states?
Both cases touch on this question. “States’ rights supporters could conceivably think that the federal government should defer to each state’s decision on same-sex marriage, in which case Ms. Windsor wins her case and the Prop. 8 plaintiffs lose theirs,” University of California (Davis) Law Professor Vik Amar said.
Historically, the idea that the federal government has overstepped its mandate in relation to state powers has been attractive to conservative justices, so the possibility of that rationale being used in this case in service of a liberal policy goal is considered noteworthy.
What level of “scrutiny” should be provided for equal protection?
Supporters of marriage equality argue that laws discriminating against lesbians and gay men should be subjected to “heightened scrutiny,” meaning the government must put forth a compelling and specific need for the discrimination.
Heightened scrutiny already exists for racial and gender discrimination, which are “presumptively unconstitutional,” but applying heightened scrutiny to sexual orientation would be a first, said Dale Carpenter, a University of Minnesota law professor who has filed an amicus brief in support of overturning DOMA.
The justices could still overturn DOMA without going that far, instead using the a less-stringent standard called “rational review,” which means a lack of a rational reason to justify discrimination. Going that route would provide supporters of same-sex marriage with a less powerful precedent for future cases.
Some of the justices’ options for deciding the cases
Option 1: Uphold both Prop 8 and DOMA. Upholding both laws would be a serious strike against same-sex marriage. The status quo would stand — no same-sex marriage in California, and no federal recognition of same-sex marriage. Supporters of marriage equality would need to start their judicial quest anew and hope for a better result next time.
Option 2: Punt [skip], citing questions of “standing.”The justices could decide that the backers of Prop 8 (or possibly DOMA) aren’t the right parties to defend the law — a route the Supreme Court took a few times while grappling with the legality of interracial marriage before deciding the issue in 1967 in Loving vs. Virginia, said Kermit Roosevelt, a University of Pennsylvania law professor who has filed an amicus brief arguing that DOMA has a negative impact on child welfare. This sort of ruling would amount to kicking the can down the road.
Option 3: A mixed decision. “It’s possible for the Court to strike down DOMA without even considering the question of whether this a constitutional right to same-sex marriage, because defining marriage is beyond the power of the federal government, regardless of whether there is any individual right involved,” said Ilya Somin, a George Mason University law professor, who signed an amicus brief making that argument.
Option 4: Support same-sex marriage on very limited grounds. For instance, the court could rule that any state that had once allowed same-sex marriage can’t take it away. This would make same-sex marriage legal in California, the only state for which this condition applies, but the ruling wouldn’t be applicable in other cases.
Option 5: Support same-sex marriage in a more middle-of-the-road fashion. The court could rule that if states have civil unions that are legally identical to marriage, then they cannot deny the label “marriage” to same sex couples. This would affect the states that currently have spousal rights short of marriage.
Option 6: Support same-sex marriage everywhere all at once. The justices could go for a major shift in one fell swoop by announcing that there is a right to same-sex marriage in all 50 states. This would be a huge decision that would essentially settle the debate.
Meanwhile, any decision that struck down DOMA would have significant consequences very quickly, said Hayley Gorenberg, the deputy legal director of Lambda Legal, the largest national legal organization focused on challenging discrimination against lesbian, gay, bisexual, and transgender individuals. Such a decision “would allow married couples a host of federal benefits and responsibilities,” she said.
If the justices agree on a 50-state solution, the issue will most likely be settled. But Amar said any ruling short of that could mean that the political and legal battles continue, to one extent or another. Any other ruling “is likely to be a placeholder until other cases force the court to say more in the next handful of years.”
Abangan ang hatol ng Korte Suprema!
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Gel Santos Relos is the anchor of TFC’s “Balitang America.” Views and opinions expressed by the author in this column are are solely those of the author and not of Asian Journal and ABS-CBN-TFC. For comments, go to www.TheFil-AmPerspective.com, https://www.facebook.com/Gel.Santos.Relos
