In a couple months, probably right before Pride weekend, the U.S. Supreme Court will issue its decisions in two same-sex marriage cases. One, Hollingsworth v. Perry, seeks to overturn Proposition 8, California's same-sex marriage ban. The other, U.S. v. Windsor, would dismantle the federal Defense of Marriage Act. We're hoping for victories in both cases. But people planning on a broad, national right to marry for same-sex couples should check their expectations. While it is not clear exactly how the high court will rule, last week's historic oral arguments did provide some clues.
During the Prop 8 arguments there were some serious questions posed by the justices about proponents' standing. Justice Anthony Kennedy wondered aloud whether the Prop 8 case should even be before the court. The case is unique in that California officials refused to defend Prop 8, which they saw as unconstitutional (and two federal courts agreed). That left Prop 8's proponents to defend the law, which the California Supreme Court approved, but which some justices on the U.S. Supreme Court find troubling. In order to appeal a decision, there needs to be standing, in other words, the party appealing must demonstrate suffering some harm. Prop 8 proponents have not shown that they would be harmed if same-sex couples marry, thus possibly disqualifying them from the case.
There were also indications that there does not seem to be a majority of justices who back a national right to marry. Justices hinted at their desire not to get too far in front of public opinion, even though it is rapidly evolving on marriage equality. In the days leading up to the oral arguments, several Democratic senators and a Republican came out in support of same-sex marriage. In the last few days, even more Democratic senators have joined the side of equality, as has another GOP senator, bringing the total to 50 – one-half of the Senate. At press time, only seven Democratic senators were still on record as opposing same-sex marriage. That's a sea change from just a year ago. And while we are pleased with all this new-found support, the fact remains that same-sex marriage is legal in only nine states and the District of Columbia. Marriage equality is banned in 31 states. More of those states will need to repeal those constitutional amendments before there is widespread support for marriage equality, at least in the eyes of the Supreme Court. For historical perspective, by the time the high court ruled that interracial marriage was unconstitutional, nearly every state had made the same determination. And that is key, because, as several justices noted last week, marriage, divorce, and child custody issues have traditionally been the purview of the states.
The arguments seemed clearer in the DOMA case, where there is demonstrable harm in that plaintiff Edith Windsor, 83, had to fork over $363,000 in estate taxes to the IRS after her spouse died. Had Windsor been a straight woman, she would never have had to pay that money. That's an example of real harm that we think the justices understood.
An incremental ruling in the Prop 8 case, one that would restore marriage equality in California, would be a huge victory. And if DOMA is ruled unconstitutional, same-sex couples would finally begin to receive the benefits to which their straight counterparts are already entitled. That would go a long way to creating more equal relationships in areas of taxes, immigration, and other spousal benefits.
As public opinion continues to shift, more states will receive marriage equality. While we'd like the justices to say that marriage is a right to be enjoyed by any couple, gay or straight, it doesn't seem likely. At the same time, restoring marriage equality to the largest state in the nation sends an undeniable message – same-sex marriage is here to stay.