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News Analysis: How Will the Supremes Rule on Marriage Equality?

by Kilian Melloy
Tuesday Dec 11, 2012

The world will not end on Dec. 21, 2012, but for gay families it might get considerably more complicated... or blessedly more equal, or perhaps even both at once... once the Supreme Court issues its rulings on two monumentally important cases, with rulings expected sometime in mid-2013.

The two cases involve the constitutionality of the anti-gay federal law, the "Defense of Marriage" Act," which then-President Bill Clinton signed into law in 1996. DOMA takes vicious, pitiless aim at same-sex couples and their children by singling them out for blanket denial of all federal recognition, including benefits like tax breaks and Social Security benefits.

The plethora of complications this raises for gay families is staggering; States are free to ignore the marital status of wedded single-gender couples from marriage equality states, and similarly opens the door for parents to be rendered legal strangers to their own children simply by crossing a state line.

Married couples in the states that recognize their unions know firsthand how the federal tax code punishes them. I should know: Every year my husband and I file jointly for state taxes in Massachusetts, and thenhave to prepare separate filings for Uncle Sam. It usually costs us between $600 to $1,000 in additional taxes that we would not have to pay if DOMA did not deny us equal treatment before the law on a federal level.

If one of us were to die, the other could be left facing a hefty -- perhaps even confiscatory -- tax bill. Irony of ironies: If the Tea Party had not become so blatantly homophobic, just think of the appeal it would have had for families like ours thanks to its stance on taxation issues!

What Being 'A Suspect Class' Means
President Barack Obama single-handedly delivered to our families a huge and potentially game-changing gift by deeming gays and lesbians a "suspect class." No, not suspect as in somehow untrustworthy or menacing or criminal -- that's the stance of anti-gay groups like the National Organization for Marriage (It was NOM, remember, that insisted that all the GOP hopefuls for the 2012 presidential election sign a pledge to investigate gays on the basis of allegations that marriage equality advocates had threatened violence against supporters of Proposition 8, the anti-gay law that stripped gay families of their then-existing marriage rights in 2008.)

No, this "suspect class" refers rather to a class of people who, through their essential and unalterable identities, are different from the majority and are, as a result, persecuted for their differences. Gays and lesbians have known for decades that this description fits us, and we've spoken out about it for decades too.

It was only when Obama put us in that "suspect class" category and refused to defend DOMA in federal courts, where the law has been taking a beating, did we gain official recognition that we are who we say we are: People who were born to be sexually and romantically attracted to those of our own gender. In other words, we didn't "choose" the "lifestyle" of gays and lesbians in order to piss people off or make some kind of political statement. It's who we are -- and who we are supposed to be.

Hearing Prop 8: A Mixed Blessing
The Supreme Court will also be ruling on the constitutionality of Proposition 8, which was a terrifying benchmark in the politics of big-money cynicism. The anti-gay side spent around $80 million lying to California's parents, telling them that marriage equality for gay adults would somehow translate into classroom pressure to turn innocent children gay. (More of the same "choosing to be gay" baloney, in other words.) Our rights should never have been subject to popular vote in the first place, but for the voters of California to yank existing marriage rights out of the hands of gay families is, the courts have so far agreed, a violation of our rights under the Equal Protection clause of the U.S. Constitution.

The court could simply have declined to hear the Prop 8 case, with the result that the appeals court decision upholding the original ruling against Prop 8 would have stood and marriage rights would have been restored in California. It's either deeply troublesome that the Court agreed to hear the case, or cause for jubilation.

Here's the problem: If the court wants to roadblock social progress and family rights for gays for decades to come, then agreeing to hear the case with an eye to striking down Judge Vaughn Walker's original ruling against Prop 8 is one way to do it. There would be the possibility of all sorts of collateral damage.

Once a fundamental right of one minority can be rescinded at the ballot box, the reasoning goes, what protects the rights of any other minority group? But this, in turn, could pave the way for endless, expensive and stressful challenges to marriage equality in any or all of the nine states and the District of Columbia where marriage equality either is a reality now, or soon will be.

On the other hand, a Supreme Court finding that upholds Walker's original ruling, and the ruling that the appeals court handed down affirming Walker's judgment, could potentially rid the entire country of the anti-gay language now enshrined, via plebiscite, in the constitutions of 31 states. That seems a little unlikely, given that the Supreme Court does not tend to make extraordinarily radical rulings.

Its great civil rights benchmark cases have acted to scrub out inequality in stubborn pockets, not reset the laws of a majority of the nation's states. On the one hand, in the 1996 case Romer v. Evans, the Supreme Court has already struck down a voter-approved state constitutional amendment, Colorado's Amendment 2, which denied gay citizens any relief from municipalities in the form of gay-inclusive ant-discrimination laws.

The court ruled that Amendment 2, passed by voters in 1992, violated the rights of GLBT Coloradans under the terms of the U.S. Constitution. A ruling that finally strikes down Prop 8 for good would dovetail with Romer v. Evans, but would also be significantly different.

We’re either in for a white water rafting sort of experience, or a thrill ride of mile-long zip line proportions, but the future is coming for us and it’s not going to be boring.

Romer v. Evans was about protections denied to a suspect class. Prop 8 is about rights, and in some circles it's still the case that family rights for gays are recognized as rights at all.

The argument that marriage is not a right should, one would think, lead straight to the conclusion that the federal government should not be involving itself at all in the issue of marriage. If any government should be restricting or regulating what is, essentially, a private contract between two individuals, it's the states.

That's where we have hope that however the Prop 8 case plays out, and DOMA will finally be defeated, opening the door to a host of sensible reforms in a myriad of areas, such as the tax code; spouses who are foreign nationals; perhaps even some sort of rudimentary federal law granting domestic partnership so that gay and lesbian families would not be so vulnerable to the patchwork of wildly varying state laws that grant and strip essential rights and protections as a matter of geography.

Looking at the Right-Wing Judges
Even reliable anti-gay justices like Antonin Scalia might agree that the issue of marriage is better left to the states, and that DOMA illicitly takes authority away from states that they should be allowed to retain. Scalia dissented in 1996 on the Romer v. Evans case, where he wrote that GLBT-inclusive anti-discrimination laws requited employers and landlords to set aside personal dislike of gays while leaving them free to fire or refuse to hire employees, or refuse to rent to tenants, based on just about anything else. But Scalia also poured contempt on anti-gay groups seeking exemption from election laws that required petition signatories and charitable contributors to be publicly identified.

What of the other justices?

What about Clarence Thomas, whose stony (or sleepy) silence is hardly ever broken? One suspects that a justice whose place on the bench was imperiled by tales of fizzy drinks, provocatively adulterated pubic hairs and open admiration for porn might not be best able to appreciate the nuances of the issue -- namely, that gays are human beings, not brute beasts driven purely by lust, as the fringe right so often likes to claim.

Chief Justice Thomas Roberts upheld Obamacare, to the shock and horror of his right-wing constituency, but that was something of a special case and altogether of a different nature. Will he be able to set aside any preconceptions he might or might not have about gays and lesbians as people (or, as the case may be, less than people) in order to contemplate the Pandora's Box situation presented by the specter of rights being stripped from select demographics by popular vote? Will he be able to focus on the legalities of states' rights versus federal overreach? Or will he simply wish to put gays in their place?

The general sense seems to be that the court is so cleanly and evenly divided that these issues will be settled by one swing vote. Justice Anthony Kennedy, who has in the past been a defender of equality for GLBTs, seems to be the one expected to break the ties. That presumes that Roberts, Alito, Scalia, and Thomas will be immovably opposed to protecting gay families, and intent to the exclusion of other considerations on upholding DOMA and Prop 8.

Not Taking Liberal Judges for Granted
That line of thought also presumes that justices Stephen Breyer, Ruth Ginsburg, Sonya Sotomayor, and Elena Kagan will all agree that DOMA and Prop 8 deserve to be scrapped for want of Constitutional muster. But the justices might surprise everyone. It's certainly happened before, and in large part it's because we project our own opinions onto the justices; and more than that, imagine the justices are predictable lenses through which to see any given legal issue.

But we cannot safely make those assumptions. The issues here seem black and white to gay families: DOMA hurts us, and Prop 8 stole what was rightfully ours. Neither should be allowed to stand, because the precedents they set are too dangerous -- not just for gays, but for any minority. From a strictly legal standpoint, however, the issue is exponentially more complex.

Walker's decision struck down Prop 8 but did so on a narrow, rather than broad, basis. The outcomes of the decisions ahead will inevitably have broad effects, but they could well be arrived at through thinly parsed legal analysis that will muddy the waters for years or decades to come.

Get Set for a Wild Ride
Perhaps the more crucial element to all this is how We the People are going to react to the Supreme Court's rulings. No matter what happens, the losing side is going to hurl accusations of judicial activism at the Supreme Court, and it's even possible that decades of virulent backlash will be the result, like the continuing social division over Roe v. Wade, which legalized abortion and struck down state laws that criminalized it.

Still, the political waters need not be overly roiled. For that to be the case, however, certain factors must come into play.

Gay families and their advocates and supporters will need to remain calm and dignified whatever comes. If we win, it won't do to rub anyone's nose in it: Better by far would be simple and gracious expressions of relief and gratitude.

It would be nice for those who spend so much time and money trying to harm our families to remain calm also, as forlorn a hope as that might be. If the other side wins the day, it will instantly revitalize their efforts to strip our rights and families from us.

What we're going to need from all the Supreme Court justices, whatever their judicial and political philosophies might be, is clear-cut, durably reasoned legal opinions that take into account the real world fallout from their rulings. It might, however, be wanting too much to want this sort of crystalline and rigorous thinking from some of the current justices, especially where the law of the land concerns LGBT Americans and their families.

We're either in for a white water rafting sort of experience, or a thrill ride of mile-long zip line proportions, but the future is coming for us. Whatever happens it's certainly not going to be boring.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • Bob K, 2012-12-11 04:14:56

    Notice that the 9th Circuit judge who dissented on affirming Walker’s ruling is a MORMON in Idaho, where his family would likely have been ostracized if he voted for fairness in the Prop 8 case. Roberts faces being the "anti-rights bigot Chief Justice" in the review of this case. In the DOMA challenge, I am thinking that the provision directly affecting Ms Windsor will be struck down, but the overall unfair law may stand.

  • Oh Jed said:, 2012-12-11 08:07:35

    We can certainly drive ourselves crazy with speculation. I’ve read every single analysis that has hit my news feeds and am no closer to feeling confident about my opinion of potential results. One thing I DO know, it’ll certainly be interesting to see how they craft an eloquent and truly logical ruling if bias against us is any part of their decision.

  • JerryInSoCal, 2012-12-11 18:03:11

    My partner is a German national, so DOMA decision is very important to us. One comment he made recently sticks with me: "if the US Courts rule against the LGBT community, the US will be last on civil rights in the first world countries. Other countries are watching the US closely."

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