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Mortal blows for DOMA ahead? U.S. Supreme Court to hear two marriage equality cases

The U.S. Supreme Court announced on Friday that it has decided to grant review in Hollingsworth v. Perry, California’s Proposition 8 case. The amendment barring same-sex couples the right to marry was declared unconstitutional by Chief U.S. District Judge Vaughn R. Walker in 2010. That was subsequently upheld by the 9th Circuit Court of Appeals. The American Federation for Equal Rights (AFER), the sole sponsor of the Prop 8 case, will submit arguments by April 2013, with a decision by SCOTUS is expected by June of next year.

“This case is about the fundamental constitutional right of all Americans to marry the person they love.  The plaintiffs we represent are two loving couples who, like millions of other gay and lesbian Americans, are being denied the right to marry and the right to be treated with equal dignity and respect under the law,” said Plaintiffs’ lead co-counsel Theodore B. Olson.  “The Supreme Court’s decision to grant review in this case illustrates the national significance of marriage equality, and brings us closer to the day when every American will be able to equally enjoy the fundamental freedom to marry.”
“Fourteen times the Supreme Court has stated that the freedom to marry is one of the most fundamental rights—if not the most fundamental right—of all Americans,” said Plaintiffs’ lead co-counsel David Boies.  “As we have said from the very beginning of this case, the denial of that fundamental right seriously harms gay and lesbian Americans and the children they are raising.  It serves no legitimate state interest.  We are ready to defend our victories before the Supreme Court, where we will urge the Justices to reaffirm our Constitution’s central promises of liberty, equality, and human dignity.”

Also, SCOTUS will also hear one challenge to the federal Defense of Marriage Act (DOMA), Windsor v. United States. DOMA prevents same-sex married couples from receiving federal benefits such as Social Security spousal benefits and health insurance for spouses of federal employees. ACLU:

Edie Windsor and Thea Spyer shared their lives together as a couple in New York City for 44 years. They got engaged in 1967, a couple of years after becoming a couple, and were finally married in Canada in May 2007. Two years later, Thea passed away, after living for decades with multiple sclerosis, which led to progressive paralysis.

When Thea died, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes.

See the Blend post on the Windsor case here. Plaintiffs in the Prop 8 case are Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo.

Paul and Jeff from AFER on Vimeo.

Two other ground-breaking cases challenging DOMA, Gill v. OPM and Pedersen v. OPM. were not taken up by the high court.

The Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy breaks down the issues in the cases that SCOTUS will hear:

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.
Research shows:
  • 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.

Chris Geidner’s report at Buzzfeed, “Advocates Look For Gay Equality By Independence Day,” also covers the potential downside of the news.

Of course, the private reaction from civil rights advocates Friday was not all positive. Some had hoped the Supreme Court, for now, would avoid the larger issue of marriage equality and instead focus on federal prohibitions of recognizing same-sex couples legally married by a state.

That building-block strategy is similar to previous civil rights fights and was the aim of the established LGBT legal groups until the American Foundation for Equal Rights filed its challenge to California’s Proposition 8, a move that greatly accelerated the legal fight.

Like leaders of the civil rights movement fighting for racial equality a half-century ago, the established LGBT groups worried forcing the issue could result in court decisions that would put the movement back decades, and Friday’s news of the high court’s decision again raised those concerns, at least privately.

Also, it should be noted that while most LGBT rights organizations remain focused on marriage equality, out in the real world, it would be ironic if same-sex couples found themselves with the right to marry, but can still be fired in many states for being LGBT. This is why we need the federal Employment Non-Discrimination Act (ENDA) to be passed and signed into law — and it won’t happen with the current political composition on the Hill despite wide public support.

  • States where individuals can be fired for being gay: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming.
  • States where individuals can be fired for being transgender: Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming.

Reactions to Friday’s big news are below the fold.


“Gay and lesbian couples across the nation are one step closer to achieving the full and equal right to marry denied to them by discriminatory laws like Proposition 8,” said Bruce Cohen, president of AFER’s Board of Directors.  “Today marks the final chapter of a journey that we started four years ago, and I am thrilled to see that marriage equality is finally within our grasp.”
“This is the moment we have been fighting for since we first filed this case,” said AFER executive director Adam Umhoefer.  “In just the last few years, America has witnessed extraordinary momentum toward marriage equality for all.  Multiple federal court decisions and a majority of Americans recognize that it is past time that the nation redeem our Constitution’s promise of liberty and equality for all by ensuring that every American has the right to marry the person they love.  Make no mistake, with two lower court victories and the Constitution on our side, we will prevail.”

Gay & Lesbian Advocates & Defenders:

“DOMA creates a gay-only exception to federal recognition of state-licensed marriages, and we believe that the federal government should stop discriminating against same-sex couples legally married by their states. We know from working with legally married same-sex couples since 2004 in Massachusetts that DOMA undermines their security in every aspect of life and death,” said Mary L. Bonauto, director of GLAD’s Civil Rights Project.

GLAD’s two DOMA challenges, Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management were also considered at today’s Supreme Court conference but were not granted certiorari. GLAD filed Gill, the country’s first strategic challenge to DOMA in 2009; and filed Pedersen in 2010.  Gill was the first case in which DOMA was found unconstitutional by a federal District Court, and also achieved the first appellate ruling that DOMA is unconstitutional in May 2012.

Of California’s Prop 8 case, Bonauto said, “The ability to commit in marriage to the person you love is profoundly important and should not have been taken away from committed same-sex couples. GLAD has been leading the fight for marriage equality for two decades, including the historic marriage equality breakthroughs in Massachusetts and Connecticut, and we are committed to the success of this case. That the issue will soon be heard by the Supreme Court is a vindication of our work to achieve equal protection under the law for same-sex couples. This day has been long in the making, and we are committed to the success of this case.”

Jon Davidson, Legal Director at Lambda Legal:

“This is an exciting moment in our journey toward equality. DOMA is a terrible law that forces our government to discriminate against loving same-sex couples, and it is time for it to go. It is clear that DOMA’s days are numbered. Every one of the cases that the Court was considering makes a clear and compelling case for striking down this outrageous and discriminatory law. As we have throughout this litigation, we will contribute support and file a friend-of-the-court brief. We look forward to working with the ACLU and other sister organizations in making this case before the Court.

“As for Hollingsworth v. Perry, while the Supreme Court’s decision to review the Ninth Circuit’s correct and carefully-worded ruling delays the restoration of equal access to marriage for same-sex couples in California, we believe the lower court rulings in California will stand. There is no legitimate justification for the inequality Prop 8 imposes on same-sex couples, and two federal courts have already ruled against it.

“We will continue to support this case brought by the American Foundation for Equal Rights as we have in the past, by filing a friend of the court brief. They have forcefully made the case that Prop 8 is unconstitutional and that there was no valid reason to deprive California same-sex couples of the freedom to marry. Securing the freedom to marry for same-sex couples is inevitable, and we look forward with confidence to the day when we can celebrate the final demise of Prop 8. And if the Supreme Court finds that the proponents of Prop 8 did not have right to appeal, same-sex couples in California will again have the right to marry.”

OutServe-SLDN Executive Director Allyson Robinson:

“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,” said Robinson.

The Gay & Lesbian Alliance Against Defamation (GLAAD):

“Today is a historic moment for our nation, equality and countless gay and lesbian couples, who simply want an opportunity to marry the person they love,” said GLAAD President Herndon Graddick. “Our momentum is great and our resolve is strong, with the Supreme Court now poised to affirm our Constitution’s core principals of liberty, dignity and equality for all.”

Log Cabin Republicans:

“Today’s decision by the Supreme Court to review Proposition 8 and hear a challenge to DOMA is another step forward for California couples to marry, with the hope that the federal government will also recognize these marriages,” said Executive Director R. Clarke Cooper. “In recent years, many conservative judges have repudiated DOMA, and five of the eight justices who have overturned this anti-federalist and discriminatory statute were appointed by Republicans. Add conservative champions like for former Solicitor General, Ted Olson, and it becomes clear that true conservatism demands respect for the freedom to marry.”

National Center for Lesbian Rights Executive Director Kate Kendell, Esq.:

“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.”

People For the American Way (PFAW) President Michael Keegan:

“As we saw with last month’s state ballot measures affirming marriage equality, more and more Americans are coming to understand that laws preventing same-sex couples from getting married do real harm to our families, friends, and neighbors.  There’s also absolutely no legitimate reason for the federal government to recognize some legally married couples while refusing to recognize others. Laws like Proposition 8 and DOMA go against the central American ideal of equal justice under the law,” said Keegan. “We applauded the earlier court decisions that found both Section 3 of the Defense of Marriage Act and Proposition 8 to be unconstitutional. There’s no question that the Constitution’s guarantee of equal justice under law applies to all people—gay or straight. The cases the court agreed to hear today are a landmark opportunity for our country to move towards making marriage equality the law of the land once and for all.”

“It is time to for the Supreme Court to weigh in on the side of equality and send a powerful message: our country will no longer selectively discriminate against loving, committed couples.”

PFLAG National Executive Director, Jody Huckaby:

“Parents and allies of gay and lesbian people know what the merits of this case are: ending the deep harm that is inflicted upon their loved ones each day as they are denied the basic right to marry. It is our hope that the Supreme Court listens to these merits and sees them for what they are — the very reasons why this case must be heard. This is a watershed moment, one that will give the Justices the opportunity to affirm—perhaps for the 15th time—that life, liberty, and the pursuit of happiness is a fundamental right for all Americans, and that the denial of that right seriously harms our gay and lesbian loved ones, as well as their children. We look forward to a decision that will affirm marriage equality across the country.”

NYS Assembly Member Daniel O’Donnell:

“While I am disappointed that Californians will now have to wait even longer for Marriage Equality to be restored in their state, I am profoundly hopeful that the Supreme Court is taking this opportunity to consider the discriminatory Defense of Marriage Act. I was proud to help lead New York’s successful Marriage Equality fight, but until the federal government recognizes marriages like mine, we have not achieved true Marriage Equality.

“I wish to extend personal congratulations to the incredible Edie Windsor, whose resilience and optimism as she fights to be afforded equal treatment under the law have inspired me for many years. I look forward to reading the Supreme Court’s decision on this issue, and am hopeful that they will decide to uphold Edie’s and my fundamental right to be treated like any other US citizen.”

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Pam Spaulding

Pam Spaulding