For the first time in history, the Supreme Court will be hearing two gay rights cases in one term. Between now and June, public attention will be focused closely on the right of lesbians, gay men, and bisexuals to equality under the law and of same-sex couples to have their relationships treated equally by the federal government and at least California.
The Supreme Court has now decided to hear one of the challenges to the provision of the so-called Defense of Marriage Act (DOMA) barring federal recognition of same-sex couples’ marriages and also to hear the challenge to California’s Proposition 8. What does it mean?
The decision to hear a case does not mean that the Court thought the lower courts got it wrong. It means the justices want to have the cases fully briefed and argued to them before they make a decision about the issues. So, in both the ACLU’s Windsor v. United States case and in AFER’s Hollingsworth v. Perry case, the parties will file briefs early in 2013 and the Court is likely to hear argument in late March, with decisions expected by June 27. Lower courts have already ruled in Windsor that Section 3 of DOMA is unconstitutional, and in Hollingsworth that Prop 8 is unconstitutional.
As we have in the lower courts, Lambda Legal will be submitting friend-of-the-court briefs in both cases, using our expertise to make key arguments to the justices. (Lambda Legal has a pending DOMA challenge, in which a lower court has already ordered that equal health care benefits be provided to the spouse of our client, Karen Golinski. Our case is now pending before the Ninth Circuit Court of Appeals, and the Supreme Court has not yet taken action in the request before it to hear that case.)
Both the Windsor and Perry cases raise the critically important issue of how courts should approach laws like DOMA and Prop 8 that discriminate based on sexual orientation. We and the Department of Justice believe that such laws should be presumed unconstitutional and subject to “heightened scrutiny.” That means the burden should be on the defenders of such laws to prove that they at least substantially further an important government interest. Because lesbians and gay men have suffered a history of discrimination in this country, and because sexual orientation is not a characteristic that is related to whether or not people can contribute to society, this level of judicial scrutiny should apply. This is one of the important issue upon which the Court may rule.
We also believe, however, that, even if that is not how the Court rules, Section 3 of DOMA and Prop 8 cannot pass the lowest level of judicial scrutiny, because those laws do not further any legitimate government goal.
But, the Supreme Court may not ultimately decide the merits of either case. In addition to requiring briefing on the substantive issues in the cases, the justices asked the parties in both to address whether the entities seeking Supreme Court review had the right to appeal the lower courts’ rulings (in legal jargon, whether they had “standing”). The “Bipartisan Legal Advisory Group” (BLAG, which is controlled by the Republican House leadership) argues that the Department of Justice (DOJ) does not, because DOJ’s position that Section 3 of DOMA is unconstitutional won in the lower courts—and, they argue, the side that won does not have standing to appeal.
But BLAG is only a committee of the House, so there are questions about its right to appeal. If the Court decides that neither had standing, we may have to wait for a final decision about the constitutionality of Section 3 of DOMA until the Supreme Court hears another challenge to DOMA at some point in the future.
Likewise, there are questions about whether the proponents of Prop 8 had the right to appeal, since they are not themselves legally harmed by same-sex couples being able to marry again in California. The Supreme Court asked the parties in Perry to address this too and, if the Court concludes they did not have standing, Judge Walker’s trial court ruling that Prop 8 is unconstitutional will stand, and same-sex couples will be able to marry in California once again.
We don’t yet know what the Supreme Court will do with Lambda Legal’s Diaz v. Brewer case, where the state of Arizona has asked the justices to review an order we obtained maintaining domestic partner health insurance coverage for the state’s lesbian and gay employees as that case proceeds. We may hear about that on Monday.
What we do know now is that, unfortunately, the right of same-sex couples to marry in California will remain on hold until at least the summer. We also know that, for the first time in history, the Supreme Court will be hearing two gay rights cases in one term. And we know that public attention between now and June will be focused closely on the right of lesbians, gay men and bisexuals to equality under the law and of same-sex couples to have their relationships treated equally by the federal government and at least California. Finally, we know there is work for everyone to do. Lambda Legal will be busy developng the best arguments we can for victory in both these cases, and everyone who believes in this fight needs to continue the process of educating our families, neighbors and co-workers that the Constitution’s mandate of equal protection applies to us all, including the millions of same-sex couples whose rights are most directly at stake in these cases.
Previously: The Supreme Court Goes for 2
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