BY Jay Kaplan
There is a lot to celebrate this year – we've made tremendous progress toward marriage equality in both the traditional courts and the court of public opinion. Despite a few setbacks, the long legal road to equality is more clear than it has ever been.
Professor Art Leonard of New York University Law School recently observed that a consensus is emerging in our federal courts that the justifications to deny civil marriage to same-sex couples don't pass constitutional muster. He also said that the momentum in support for allowing same-sex couples to marry and to enjoy all the state and federal benefits of marriage is accelerating. Although the timeline is unclear, one thing is certain – the United States Supreme Court will likely settle the question.
Prop 8: This Thing of Darkness
We're all still flying high from the Ninth Circuit Court of Appeals decision striking down Proposition 8, the California voter approved constitutional amendment that denies same-sex couples the right to marry. Earlier this month, we celebrated another victory in the case as a panel of judges declined to reconsider the decision, bringing us one step closer to marriage equality in California. While the case was specifically designed, if successful, to win same-sex couples the right to marry in all 50 states by eventually reaching the U.S. Supreme Court, the appeals court handed down a more limited victory by applying a constitutional analysis to the specific circumstances of California where for six months gay couples had the right to legally marry before that right was taken away through a ballot initiative. Because of the limited scope of the appeals decision, the question now is whether the Supreme Court will take this case on appeal and, if it does, would the decision apply to only similar situations or would it have a broader impact on the rest of the country.
DOMA: What's in a Name?
The so-called Defense of Marriage Act has been getting a thrashing in our federal courts as of late. DOMA, as you may recall, was enacted in 1996 and excludes married same-sex couples from all federal rights and benefits accorded to heterosexual couples. DOMA doesn't legislate the right to marry; however, it prohibits the federal government from recognizing tens of thousands of existing legal marriages of same-sex couples from states like Massachusetts and New York that have legalized marriage. Although DOMA litigation hasn't received as much press, these cases are likely to pave the road to marriage equality through the Supreme Court.
On May 30, the First Circuit Court of Appeals ruled that Section 3 of DOMA denies equal protection rights under the constitution to same-sex couples who marry under state law. This is the first appellate court decision affirming DOMA as unconstitutional. The decision will most certainly be appealed by the United States House of Representatives to the Supreme Court since President Barack Obama's Justice Department has declined to defend DOMA in federal court, calling for its repeal.
In addition to this appeals court victory, five federal district court judges around the country have already found Section 3 of DOMA to be unconstitutional, including a decision where the New York District Court sided with our client Edie Windsor. Thanks to a previous ACLU lawsuit, New York State recognizes marriages of same-sex couples validly entered into in other states, therefore New York considered Edie and Thea, who were married in Canada, to be lawfully married in the state. After decades together, and finally realizing their dream of getting married, it was devastating to Edie for the federal government to disrespect their marriage and pretend that they were not family after Thea's death.
Because of DOMA, the federal government taxed Edie's inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her estate, including the family home, to her spouse without incurring taxes – but Edie had to sell off some of their assets in order to pay the hefty federal estate tax bill.
Equality: To Be or Not To Be
Whether it's Prop 8, DOMA or both, the Supreme Court will soon have its say. It's likely that the Court may be more comfortable taking incremental steps by considering the DOMA decisions before its willingness to consider the issue of marriage equality as a whole. In the recent past, the Court has been reluctant to weigh in on issues where there isn't an obvious consensus of public opinion. For instance, at when the Court struck down Texas' same-sex sodomy law in the 2003, nearly all states had repealed similar criminal laws. Although public opinion seems to be moving fast – a recent CNN poll shows that a majority of Americans, 54 percent, favor marriage equality for same-sex couples – 40 states have laws or amendments on the books that prohibit same-sex couples from marrying.
While the U.S. Supreme Court may not be ready commit fully to marriage equality, striking down DOMA may be the much needed step in the right direction. After all, some of our country's biggest civil rights triumphs have historically been incremental victories.
This is an exciting, if not daunting, time in the world of jurisprudence and LGBT equality. It's always difficult predicting what our courts may do, however, regardless of how sweeping or limited a decision may be, we can't deny that the momentum for marriage equality continues to build.
