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Activists Gather as Supreme Court Hears Two Landmark Marriage Equality Cases

Update 3/22: Human Rights Watch reports that "supporters of marriage equality will gather outside the Supreme Court on the first day of hearings: March 26 at 8:30 a.m. in Washington, D.C"


(earlier post)

2013 is quickly becoming a pivotal year for the history of the marriage equality movement.  Not only did President Obama recognize and support the struggle of gay and lesbian Americans for the right to marry in his inaugural speech in January – the Supreme Court announced the same month that it would hear two precedent-setting marriage equality cases, challenges to California's Proposition 8 and the Defense of Marriage Act (DOMA).  Arguments will be presented in the Hollingsworth v. Perry and Windsor v. United States cases on March 26 and 27, respectively, and the rulings are expected some time in late June.


Proposition 8, which proposed a law banning same-sex marriage in the State of California, was a highly-contested ballot measure passed by a narrow margin (52%-48%) in 2008.  Since the law passed, it has been challenged in Hollingsworth v. Perry twice in courts and ruled both times to violate the Equal Protection Clause of the 14th Amendment of the Constitution; first by a district court, then by the Court of Appeals.  The Equal Protection Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."


Despite the State of California’s decision not to pursue the measure’s legal status any further, supporters of Proposition 8 appealed the case to the Supreme Court.  The plaintiffs (several same-sex couples) have been represented by the American Foundation for Equal Rights (AFER) in collaboration with Theodore Olson, a Republican and a former Justice Department lawyer.  


As the consequences of the Proposition 8 ruling will be nationwide in scope, the Supreme Court received a flood of briefs and letters not only from California, but from across the nation in advance of the hearing.  Importantly, the Obama Administration filed its own brief in which it argues that Prop 8 is unconstitutional and discriminates against gay and lesbian Americans.  Somewhat surprisingly, a similar brief contesting Prop 8 came from 80 prominent Conservatives and Libertarians: representatives of large businesses, corporations, churches, state and local governments- even actor Clint Eastwood.   


There are three possible outcomes for the Prop 8 case:  The Supreme Court can nullify the two lower court rulings, upholding the ban in California; The Court might rule just the opposite – that the measure is in direct violation of the Constitution and as such should be immediately revoked; Or the Court might find that those defending Prop 8 do not have legal standing, since the State of California decided not to appeal to the most recent ruling.  In the third case, the decision of the Court of Appeals that ruled Prop 8 unconstitutional would immediately enter in force and the ruling would impact only California.


A day after hearing the arguments for the Prop 8 case, on March 27, the judges will turn to the challenge of Defense of Marriage Act (DOMA), known as Windsor v. United States.   Edie Windsor, a 83-year-old widow, is suing the federal government for charging her $350,000 in federal estate taxes after the death of her wife.  Although legally married in California, the two women cannot be regarded as spouses by the federal government due to the Defense of Marriage Act.  Edie Windsor is represented by the American Civil Liberties Union (ACLU).  The key argument against DOMA is that it violates the guarantee of equal protection of laws under the Fifth Amendment of the Constitution. 


A ruling in the Windsor case would impact a great deal more than estate taxes in the context of same-sex marriage.  If DOMA is repealed, the federal government would have to recognize legally married same-sex couples at the federal level, granting them all the benefits and privileges that the federal government confers to heterosexual spouses.  A ruling against DOMA, though, would not likely lead to the legalization of same-sex marriage across the United States– a defeat of Prop 8 would, however, provide the legal justification needed to strike down laws that ban same-sex marriage across the nation.


A ruling against DOMA would have another significant outcome for binational same-sex couples.  Even though Prop 8 and DOMA prohibit rights and benefits to American couples, they never had the power to separate two American gay or lesbian citizens who deeply care for each other.  For binational same-sex couples (as in the case of the author), these laws have the potential to tear apart relationships based on deep commitment and love because non-American spouses are unable to apply for a green card or citizenship, a right that heterosexual couples have enjoyed for decades.  A ruling agaist DOMA would open up this possibility.


While the Supreme Court’s decision on Prop 8 is a tricky one, since there are several possible outcomes, the fate of DOMA is less uncertain, as the general sentiment is that the legislation will not stand the Court’s scrutiny.   For more information, LGBTQ Nation has put forward a great summary of possible outcomes of the two cases.



Regardless of the results, the marriage equality movement has already succeeded in bringing the issue into mainstream political debate.  It is the determination and hard work of dozens of civil rights organizations that allowed for marriage equality to reach the Supreme Court by making it a top policy issue.  It is largely thanks to their efforts that most Americans today favor same-sex marriage.  Please check our media gallery with an overview of those non-profits and their current activities.