The past several days have been huge for gay marriage in the United States. Rachel Weiner reviews the week for the Washington Post.
In oral arguments last Monday on the constitutionality of California’s ban on same-sex marriages, the Supreme Court seemed wary of finding a constitutional right for gay couples to wed. Washington Post’s Supreme Court reporter Robert Barnes explained: Justice Anthony M. Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have even accepted the case, in which lower courts struck down California’s voter-approved Proposition 8, which restricted marriage to heterosexual couples.
Finding a constitutional right to marry would overturn bans on same-sex marriage across the country in one fell swoop. Based on the oral arguments in Hollingsworth v. Perry, that seems unlikely. The Court could also find that states can’t allow civil unions but not marriage to gay couples, which would affect nine states. (That position “drew almost no interest from the justices,” Barnes writes.) The Court could sustain the Ninth Circuit decision striking down Prop 8 but limit the decision to California. (The handicapping of the oral arguments seems to suggest this is the most likely outcome.) Or the Court could find that the petitioners don’t have standing, which would in effect affirm the Ninth Circuit decision. They could also uphold Proposition 8, although analysts have deemed that improbable.
Meanwhile, the House GOP leadership isn’t talking about the law they’re defending in the Court — much to the ire of social conservatives and amusement of gay Republicans. House Democrats say that 10 million people have seen a pro-marriage equality image the Democratic Congressional Campaign Committee posted on Facebook.
The Defense of Marriage Act
The intentions of the Court seemed a bit clearer on the 1996 Defense of Marriage Act in United States v. Windsor:
A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act (DOMA) and whether it created unequal classes of married couples by denying federal benefits to legally wed same-sex couples.
But there was skepticism from conservative justices over whether either party in the case had standing to bring it to the Supreme Court at all. Republican leaders in the House defended DOMA in court; a SCOTUS-appointed attorney argued that they don’t have the standing to do so. Moreover, she argued that the Obama Administration cannot be a party in the dispute because it agrees with the plaintiff. (The Justice Department announced last year it believed DOMA to be unconstitutional but continued to enforce it in advance of this case.)
A finding of no standing would mean a lower court ruling in plaintiff Edith Windsor’s favor would be upheld but would not impact DOMA outside New York. The law has already “been declared unconstitutional as applied to same-sex couples married in the Northeastern states covered by the U.S. Courts of Appeals for the 1st and 2nd circuits,” Barnes explains. A ruling that the law violates the 14th Amendment would overturn DOMA everywhere.
83 year old Windsor married Thea Spyer, her partner of more than 40 years, in Canada in 2007. Both were residents of New York. When Spyer died in 2009, she left her estate to Windsor. At that time, the state of New York recognized the marriage. But because the marriage was not recognized by the U.S. government, Windsor paid a federal estate tax bill of more than $360,000 that would not have been assessed if she were married to a man.
As the Supreme Court wrestled with the legality of gay marriage, Democratic senators were falling all over themselves to embrace it on moral grounds.
In the past week alone, Senators Mark Begich (Alaska), Tim Kaine (Va.), Kay Hagan (N.C.), Claire McCaskill (Mo.), Jon Tester (Mont.) and Mark Warner (Va.) all came out in support of gay marriage. There are now only nine Democratic senators who do not support same-sex marriage: Tom Carper (Del.), Bob Casey (Pa.), Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Tim Johnson (S.D.), Mary Landrieu (La.), Joe Manchin (W.V.), Bill Nelson (Fla.), and Mark Pryor (Ark.). Of those, Johnson no longer supports DOMA. Sen. Lisa Murkowski (R-Alaska) also says her views are “evolving.”
Democrats appear to have decided that the Supreme Court cases are a tipping point and that if they don’t back gay marriage now, history (and gay voters and donors) will treat them unkindly. And, of course, two weeks ago the first Republican senator, Ohio’s Rob Portman, came out in support of gay marriage. Portman’s son, Will, is gay — a personal relationship that propelled the senator to change his view. Last Sunday, Republican Strategist Karl Rove said the GOP could have a candidate in 2016 with the same position. In an appearance on ABC’s “This Week,” Rove was asked by host George Stephanopoulos whether he could “imagine” the next GOP presidential candidate saying they are flat out for gay marriage. “I could,” Rove said.
A Washington Post-ABC News poll came out last week showing support for gay marriage at an all-time high. 58% think it should be legal for gay and lesbian couples to get married, an increase of 17% from 2004. Those who think gay marriage should be illegal dropped from 55% in 2004 to 26% in 2013.