The U.S. Supreme Court will hear arguments next week in two cases that have the potential to change the face of 
LGBT rights and bring marriage equality to all Americans.
In Windsor v. United States, the court will rule on the constitutionality of the Defense of Marriage Act, which bans federal recognition of same-sex marriage. In Hollingsworth v. Perry, the justices will consider California’s Proposition 8 measure that banned LGBT marriage in the state. The court could uphold the law, strike it down in California only, or go so far as to strike down same-sex marriage bans in all 50 states.
The historic cases will be heard as support for marriage equality is at an all-time high in the country. According to a Washington Post-ABC News poll published this week, 58 percent of Americans think that gay and lesbian couples should be able to get married, up from 37 percent in 2003.
Brief After Brief
The two cases have seen an overwhelming number of briefs filed in favor of and against equality, with countless interested and interesting parties speaking up.
The White House has asked the justices to toss the discriminatory DOMA law, after President Obama announced his support for marriage equality last May, reversing his previous stance. “I think same-sex couples should be able to get married,” the President said. In fact Obama instructed the Department of Justice to not defend DOMA in court, leaving the task instead to a group of congress members, the House Bipartisan Legal Advisory Group.
Bill Clinton, who signed DOMA into law in 1996, has spoken in favor of marriage equality, as has Hilary. Professional football players Brendon Ayanbadejo of the Baltimore Ravens and Chris Kluwe of the Minnesota Vikings offered their support, as well as the American Academy of Pediatrics and nearly 300 big businesses including Apple, Morgan Stanley, Starbucks and Pfizer.
Unexpected Support
John C. Eastman
Support has come from unexpected places, as well. Republican Sen. Rob Portman from Ohio has said he is in favor of equality, citing his gay son for changing his mind. Arch-conservative former Vice President Dick Cheney and former George W. Bush speechwriter David Frum are on board as well.
In February, more than 70 prominent Republicans signed a brief arguing that gay marriage bans should be struck down. The conservative think tank Cato Institute also entered a brief in conjunction with the Constitutional Accountability Center that called for the end of DOMA, calling it a clear violation of the Fifth Amendment’s equal protection clause. “There is only one standard of equal protection, and it requires the state ‘to govern impartially,’ respecting the equal dignity of all persons,” the brief states.
Despite the dramatic shift in public sentiment, gay marriage opponents have not backed off. “Nothing in the Court’s jurisprudence suggests that the right of same-sex couples to have their relationships recognized as marriages is so fundamental as to be protected by the Constitution’s Due Process Clause,” writes John C. Eastman, a former professor at Chapman University School of Law and chairman of the board of the National Organization for Marriage. “Nor does the Equal Protection Clause require that result, given the societal purpose and value of marriage as furthering procreation and child-rearing. Because the Constitution does not speak to this question, it is one that is left to ordinary political processes, not to judicial fiat.”
Beyond Marriage
Brian Moulton
Beyond just marriage, the court decisions could also address whether anti-gay laws should be subject to heightened judicial scrutiny. “In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society,” writes Brian Moulton, legal director of the Human Rights Campaign. “The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.”
Arguments in Perry will be heard on Tuesday, Mar. 26; Windsor will be the following day.
Tagged as: DOMA, gay marriage, Hollingsworth v. Perry, LGBT, marriage equality, Supreme Court, Windsor v. United States
