Washington, DC — The Supreme Court announced this morning that the Defense of Marriage Act is unconstitutional.
Stretching the judicial drama to the final day of a term that started in October, the court’s nine justices will also reveal their conclusions concerning California’s Proposition 8.
“The justices are not likely to announce that the ongoing debate over same-sex marriage is now over,” said Richard W. Garnett, a University of Notre Dame Law School professor.
He said it appears that “a majority of the justices are not looking to issue sweeping and definitive rulings on hot-button questions and are instead finding ways to resolve these cases that allow other actors, including Congress, to play the leading role.”
Certainly, for each question answered Wednesday, many new ones will arise.
The main Proposition 8 question is what the court will do with the California ballot measure that prohibited same-sex marriage. The follow-up questions could range from how the reasoning affects other states that block gay couples from marrying, to precisely what happens next in California.
The main Defense of Marriage Act question concerns the future of a federal law that bars same-sex couples from receiving the federal rights and benefits afforded opposite-sex couples. The follow-ups could include exactly how to apply the 1,100-plus provisions of federal law in which marriage matters, from tax deductions to immigration status.
“While we can’t predict what the court will say, the past few years building up to this day have seen a sea change in accepting the idea that all loving and committed couples . . . deserve the protections and dignity that only come with marriage,” James Esseks, an attorney with the American Civil Liberties Union, said Tuesday.
Advocates from all sides are ready for prime time once the decisions come.
At New York City’s Lesbian, Gay, Bisexual and Transgender Community Center, Edith Windsor, the now 84-year-old woman who challenged the Defense of Marriage Act, will be appearing at a noon press conference. Ninety minutes later, in Los Angeles, California Attorney General Kamala Harris is convening her own event. Twitter, social media and a tidal wave of press releases are poised to explode.
“I would say both (Windsor), and the rest of America, are ready for a fair ruling,” said Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and AIDS Project.
The California case arose after the state Supreme Court ruled same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, in the Proposition 8 ballot measure, to limit marriages to those between one man and one woman.
The challenge to Proposition 8 was brought on behalf of several same-sex couples, including Kristin M. Perry and her partner Sandra Stier, who were denied marriage licenses.
“I’m a 45-year-old woman,” Perry testified during the 2010 trial. “I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.”
One relatively narrow option for the Supreme Court now is to conclude Proposition 8 supporters lacked the legal standing to bring a case. Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have must have either suffered an injury or face an imminent threat of injury.
California officials declined to defend the same-sex marriage ban. Instead, a conservative former Southern California state legislator and allies argued on the proposition’s behalf. At least some justices during oral arguments in March suggested skepticism about their standing.
“They really are no more than a group of five people who feel really strongly that we should vindicate this public interest,” Justice Stephen Breyer said at the time.
If the Supreme Court concludes the Proposition 8 supporters lacked standing, the case will be kicked back to the trial judge’s decision. At most, then, the decision would only affect marriage rights in California. This possibility might entice justices who are leery of making a sweeping national judgment.
The other case involves Section 3 of the Defense of Marriage Act, which declares that, for the purposes of providing federal benefits, only opposite-sex marriages count. The definition is important because it determines eligibility for a host of federal rights, benefits and privileges.
The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters. These range from tax and welfare benefits to employment and immigration policies. A same-sex military couple, for instance, is denied housing, health insurance and disability benefits, nor is the spouse eligible for burial alongside his or her spouse in a national cemetery.
The federal law defining marriage inserted the national government into what had traditionally been state territory. If justices want a narrow basis to strike the law down, this federal intrusion might be one of them.
Congress passed the Defense of Marriage Act in 1996 by wide margins. In the years since, though, a number of supporters began backpedaling. It is now opposed by former congressman Robert Barr of Georgia, a Republican author of the bill who in July 1996 decried “the flames of hedonism, the flames of narcissism, the flames of self-centered morality (that) are licking at the very foundations of our society: the family unit.”
The Obama administration, too, initially defended the federal law, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. Congressional Republicans then picked up the torch.
We’re not backing down in the face of Trump’s threats.
As Donald Trump is inaugurated a second time, independent media organizations are faced with urgent mandates: Tell the truth more loudly than ever before. Do that work even as our standard modes of distribution (such as social media platforms) are being manipulated and curtailed by forces of fascist repression and ruthless capitalism. Do that work even as journalism and journalists face targeted attacks, including from the government itself. And do that work in community, never forgetting that we’re not shouting into a faceless void – we’re reaching out to real people amid a life-threatening political climate.
Our task is formidable, and it requires us to ground ourselves in our principles, remind ourselves of our utility, dig in and commit.
As a dizzying number of corporate news organizations – either through need or greed – rush to implement new ways to further monetize their content, and others acquiesce to Trump’s wishes, now is a time for movement media-makers to double down on community-first models.
At Truthout, we are reaffirming our commitments on this front: We won’t run ads or have a paywall because we believe that everyone should have access to information, and that access should exist without barriers and free of distractions from craven corporate interests. We recognize the implications for democracy when information-seekers click a link only to find the article trapped behind a paywall or buried on a page with dozens of invasive ads. The laws of capitalism dictate an unending increase in monetization, and much of the media simply follows those laws. Truthout and many of our peers are dedicating ourselves to following other paths – a commitment which feels vital in a moment when corporations are evermore overtly embedded in government.
Over 80 percent of Truthout‘s funding comes from small individual donations from our community of readers, and the remaining 20 percent comes from a handful of social justice-oriented foundations. Over a third of our total budget is supported by recurring monthly donors, many of whom give because they want to help us keep Truthout barrier-free for everyone.
You can help by giving today. Whether you can make a small monthly donation or a larger gift, Truthout only works with your support.