While proponents of gay-marriage will frame any decision by the Supreme Court regarding marriage-equality (the PC term for Gay marriage) as a win, and a movement toward its full legalization, legal experts warn to the contrary. Of the ten cases that the Court can choose to hear during this session regarding this issue, the two that they are most like to take will be Windsor v. US, a Defense of Marriage Act case, and the California Proposition 8 case.
The Defense of Marriage Act
The Defense of Marriage Act, or DOMA, recently has been struck down by two federal appeals courts, which means the Supreme Court is all but obligated to take at least one of the cases to settle the dispute between Congress and the courts. The case thought most likely to be picked up by the justices is Windsor v. United States, which challenges DOMA, a law passed by Congress and signed by President Bill Clinton in 1996 that prevents the federal government from recognizing same-sex married couples, even those in states that allow gay marriage.
The suit was brought by Edith Windsor, a resident of New York who paid $363,000 in estate taxes after her wife died because the federal government did not recognize their marriage. New York is one of nine states (and the District of Columbia) where gay marriage is legal, so Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage. (editor note: Ms. Windsor and her partner were married in Canada in 2007, but her partner died in 2009 in New York AFTER New York began recogonizing same sex marriages from other jurisdictions)
Windsor’s attorneys are not arguing, however, that marriage is a fundamental right that all Americans are entitled to, no matter their sexual orientation. And few experts expect the Supreme Court to make such a sweeping decision.
Court watchers think the Supreme Court also will take up Proposition 8, California’s gay marriage ban. Voters passed Prop. 8 in 2008 months after the state’s high court had legalized same sex unions and thousands of gay Californians had already tied the knot. Two federal courts have struck down Prop. 8 as discriminatory, leaving the Supreme Court to render a final judgment
The Prop. 8 case differs from the DOMA case in one key respect: In Prop. 8, the pro-gay marriage side is arguing that marriage is a fundamental right that should not be denied to people based on their sexual orientation. That means the Supreme Court, in theory, could issue a sweeping decision on Prop. 8 that legalizes gay marriage throughout the country and invalidates state gay marriage bans.
Geoffrey Stone, a law professor at the University of Chicago, thinks that’s unlikely. He says the justices will most likely wait for public opinion–which has just recently begun to swing in support of gay marriage–and state laws to coalesce around the issue before issuing a broad decision.
“The more this percolates, the easier it is to address this in the future,” Stone said.
In 3 states, in this past election, the VOTERS decided to permit same-sex marriage. In more than 30 States, the VOTERS have voted to the contrary, disapproving of the redifining of marriage. And the Courts have forced same-sex marriage on its citizens, and in some cases, like the Prop 8, did so AFTER the vote of the people. This issue will continue to be debated,and as Pastor Rick Warren has said, it is a welcomed debate if it is done so in the right forum and the right demeanor.