Exclusive to The Seattle Lesbian
By Judge Anne Levinson (Ret.) and David Ward
Tuesday and Wednesday, the U.S. Supreme Court will decide on two major cases involving marriage for same-sex couples. The Court will hear oral arguments on March 26 and 27, with decisions expected by late June.
Many have asked how these cases could affect LGBT couples in Washington and across the country.To help understand what’s at stake, we’ve provided a short summary of the two cases and the potential changes they could bring. Because the two cases raise different issues, a favorable ruling in one case doesn’t guarantee a positive ruling in the other.
The DOMA case
On March 27, the Court will hear United States v. Windsor, a case challenging the so-called “Defense of Marriage Act” (DOMA), passed by Congress in 1996. This case challenges section 3 of DOMA, the provision that prohibits the federal government from recognizing marriages of same-sex couples. Section 3 states that, for purposes of all federal laws and programs, “the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Windsor argues that DOMA is unconstitutional because it requires that married same-sex couples be treated differently than married different-sex couples. This causes real harm to legally married same-sex couples and their families. Federal law provides more than 1,000 rights and responsibilities to married couples. So if a couple is not recognized as married by the federal government, they are denied all of these. For instance, DOMA denies Social Security survivor benefits if one spouse dies, denies pensions to the surviving spouses of federal employees, prevents spouses from taking Family Medical Leave to care for one another during serious illness, prohibits the opportunity to sponsor a spouse for citizenship if he or she is not a U.S. citizen, denies military spouses support and benefits ranging from housing to notification at time of death, and costs thousands of dollars for families when spouses cannot file federal taxes as a married couple.
Edie Windsor, the plaintiff in the case before the Court, provides a perfect example of how DOMA treats same-sex couples unfairly. Under federal law, a spouse is supposed to be able to leave her assets, including the family home, to the other spouse without incurring any federal taxes. Edie and her spouse Thea Speyer shared a life together for more than 40 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto. Yet after Thea died of multiple sclerosis, Windsor, 83, was forced to pay more than $363,000 in federal estate tax because under DOMA their marriage is not recognized. If not for DOMA, Windsor would not have been taxed at all.
The DOMA case is extremely important to couples in Washington and the other eight states (and D.C.) that have extended marriage equality to lesbian and gay couples. If the case is successful, it means that married same-sex couples in each of these states will no longer only have the same rights and responsibilities as different-sex couples under state law, but also under federal law.
It is important to keep in mind that in this DOMA case, the plaintiffs are already married and are simply asking the Supreme Court to require that the federal government respect their marriages for purposes of all federal statutes and programs. The Court is not being asked to find that all states must allow same-sex couples to marry or that all states must recognize marriages of same-sex couples performed in other states. But a victory would be a major step forward for marriage equality and would bring immediate and significant benefits to couples in Washington and the other states that have marriage equality.
The Prop 8 case
On March 26, the Supreme Court will also hear a case challenging Proposition 8, which California voters narrowly approved in 2008, adding an amendment to the state constitution to prohibit same-sex couples from marrying. This case (Hollingsworth v. Perry) argues that Prop 8 violates the United States Constitution’s guarantee of equal protection to all citizens. In contrast to the Windsor case, here the plaintiffs are not married and argue that the Constitution requires the state to allow same-sex couples to marry.
The Prop 8 case has been winding through the courts for several years. Notably, California’s Governor and Attorney General have both refused to defend Prop 8 in court because they agree the law passed by the voters is unconstitutional. As a result, the law has been defended by those who sponsored Prop 8.
Following a historic trial, federal judge Vaughn Walker issued a sweeping ruling in 2011 which held that Prop 8 was unconstitutional. Last year, an appellate court agreed that the law violated the Constitution; however, the appellate court based its ruling on a relatively narrow reason that may not apply outside of California. Noting that California had allowed same-sex couples to marry for several months before Prop 8 passed in 2008, the appeals court held that once a state allows same-sex couples to marry, it cannot take the freedom to marry away unless it has a rational basis to do so.
Because the appeals’ court ruling was so narrow and so specific to California, some observers were surprised that the Supreme Court agreed to hear the case. But now that the Court has taken the case, there are many different ways that it could be resolved. Here are a few possibilities:
- The Court could find that the private organizations defending Proposition 8 lacked the legal authority (called “standing”) to appeal Judge Walker’s decision. If that happened, marriage for same-sex couples would likely become legal again throughout California. However, the ruling would not apply to other states.
- The Court could follow the narrow reasoning of the appeals court, and hold that once a state allows same-sex couples to marry, it cannot irrationally take that right away. As with the first possibility, this ruling would permit same-sex couples to marry in California, but would not apply to any other state.
- The Court could issue a very broad ruling and hold that it is unconstitutional for states to deny marriage to same-sex couples — period. If that happened, every state in the country would have to extend marriage to lesbian and gay couples.
- On the flip side, the Court could hold that the equal protection clause of the U.S. Constitution does not require California or any other state to allow same-sex couples to marry. Such a ruling would be a significant setback in the fight for marriage equality. It would not only be a loss for lesbian and gay couples in California, but it would prevent LGBT couples in every other state from bringing similar constitutional challenges to marriage bans.
Some also believe the Court may have taken this case in order to rule on what level of review should apply to cases involving laws alleged to discriminate based on sexual orientation — whether Prop 8’s defenders need offer a only a “rational basis” or must have a “compelling reason” for prohibiting marriages of same-sex couples. We will have to wait until June to know for sure which of these issues the Supreme Court will address and how it will rule.
A win in the Windsor case would mean that the federal government has to respect marriages of same-sex couples, but would not require any states to allow same-sex couples to marry. A win in the Prop 8 case would at a minimum require California to start allowing same-sex couples to marry again, and could affect either some other states or even all states that do not currently allow same-sex couples to marry.
The victories for marriage equality at the ballot box last November in Washington, Maine, Maryland, and Minnesota were important in expanding the landscape where marriage of same-sex couples is allowed as the Court is reviewing these cases. But there are still 41 states that prohibit lesbian and gay couples from marrying. So while we are waiting for the Supreme Court to rule, let’s make sure to do all we can to help those in other states move forward toward marriage equality.
Judge Anne Levinson (Ret.) is one of Washington State’s first out LGBT public officials and has been involved in many LGBT and civic issues. David Ward is Legal & Legislative Counsel for Legal Voice, (formerly the Northwest Women’s Law Center), which works to ensure that all women and girls and LGBT Washingtonians have fundamental rights to equal treatment and to be free from discrimination.