Equality before the Court

Derron Thweatt and Elizabeth Schulte explain the stakes in the U.S. Supreme Court's decision to hear two landmark cases concerning same-sex marriage.

The U.S. Supreme Court  (Scott Lenger)The U.S. Supreme Court (Scott Lenger)

LAWS BARRING same-sex marriage will finally come before the U.S. Supreme Court, with the Court's announcement on December 7 that it would take up two cases challenging state and federal laws that define marriage as between a man and a woman.

One case is a challenge to Proposition 8, the 2008 California ballot measure that banned same-sex marriage. The other takes up the federal Defense of Marriage Act (DOMA), passed in 1996, which defines marriage as between a man and a woman.

The case of Hollingsworth v. Perry is a legal challenge to Prop 8, known to its supporters as the "California Marriage Protection Act." The measure passed by a narrow 52 to 48 percent margin in 2008. This came just after same-sex couples won the right to marry in California, when the state Supreme Court ruled that denying gays and lesbians equal marriage rights violated the state constitution.

In August 2010, a federal judge in San Francisco struck down Prop 8 on the grounds that it violated the 14th Amendment of the U.S. Constitution. In February 2012, a three-judge panel of the Ninth U.S. Circuit Court of Appeals voted 2-1 to uphold the district court's decision, although on the narrower grounds that Prop 8 unconstitutionally singles out gays and lesbians for discrimination. Both decisions were stayed pending appeals, so same-sex marriage has remained banned in California.

Adam Liptak of the New York Times explains that the Supreme Court has several options in the Prop 8 case:

It could reverse [the circuit court ruling], leaving California's ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California, but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

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THE SECOND case the justices will take up is United States v. Windsor, which contests a portion of the federal Defense of Marriage Act, which defines marriage as only between a man and a woman. DOMA, enacted during the Clinton administration, bars same-sex couples--even if the same-sex couples are legally married in the state where they live--from access to the more than 1,000 federal benefits available to married couples.

The challenge to this discriminatory federal law involves the case of Edith Windsor, who married her partner Thea Clara Spyer in Canada in 2007. When Spyer passed away in 2009, Windsor inherited Spyer's property. However, due to DOMA, the Internal Revenue Service didn't treat Spyer as a surviving spouse and required her to pay more than $360,000 in estate taxes--which she wouldn't have been liable for if her marriage to Spyer was recognized by the federal government.

As with the Prop 8 case, a lower court, the 2nd U.S. Circuit Court of Appeals, sided with Windsor and struck down DOMA in October. This was the second case in which DOMA was ruled unconstitutional--federal district and circuit court judges in Massachusetts likewise ruled against the law.

Attorney General Eric Holder announced last year that he and Barack Obama believed DOMA was unconstitutional, and therefore the administration wouldn't defend the law in court, though it would still uphold it.

But no one should mistake this for a guarantee that the Obama administration will make good on its promises to champion marriage equality. One day after he endorsed proposals for marriage equality on state ballots in November, Obama told MTV viewers during an interview that he wouldn't be pushing for legalizing same-sex marriage in his second term.

Instead of looking to the federal government, he said, supporters of gay marriage should focus on the states. "[H]istorically, marriages have been defined at the state level," Obama said. "And there's a conversation going on...there's some states that are still having the debate. And I think for us to try to legislate federally into this is probably the wrong way to go."

This is a backward argument. "States' rights," as Obama knows full well, is most commonly associated with the defense of slavery and Jim Crow segregation in the U.S. South--where the "right" of states was about the right to discriminate.

The truth is that Obama could have done much more to further the cause of LGBTQ equality. if he had wanted to use his political clout--as one of the most popular presidents in recent history--to press for legislation or sign executive orders that did away with institutional barriers to LGBTQ rights, he could have done so.

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MANY SUPPORTERS of same-sex marriage fear that a Supreme Court stacked with reactionaries will take this opportunity to try to turn the tide back against marriage equality.

After all, Neanderthal Justice Antonin Scalia, in a dissent to the 2003 Lawrence v. Texas case overturning sodomy laws, wrote that people who discriminated against gays and lesbians were "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." And Scalia has plenty of co-thinkers on the Court today.

This only underlines how undemocratic the "greatest democracy in the world" really is. A handful of unelected right-wing ideologues, appointed by presidents who are now viewed as illegitimate failures, will have more to say about the civil rights of millions of people than the obvious shift in public opinion on the issue of marriage equality.

Still, the die isn't cast. Other decisive cases in history have shown that the justices are swayed by popular opinion--contrary to the myth that they are impartial arbiters standing above society. This isn't because of the justices' own beliefs, but because they have to be concerned about whether the U.S. justice system is viewed as legitimate and representative of the sentiments of the majority of people in the U.S.

Thus, in 1989, when legal abortion hung in the balance in the case of Webster v. Reproductive Health Services, with a Supreme Court stacked with conservative judges, hundreds of thousands of protesters descended on Washington, D.C.--and helped tip the balance for the Court to step back from overturning Roe v. Wade.

In the same-sex marriage cases, the Court will be taking up the question amid a clear shift in public opinion about LGBTQ rights. After victories this November for equal marriage ballot initiatives Washington, Maine and Maryland, a total of nine states plus the District of Columbia now recognize the right to same-sex couples to marry.

A CBS News poll conducted shortly after the 2012 presidential elections found that 51 percent of people in the U.S. supported marriage equality. This was similar to the findings of a Pew poll in October that 49 percent of people polled supported marriage equality. Just four years earlier, that number was only 39 percent. A strong majority of younger people support same-sex marriage--73 percent of people between 18 and 29, according to a November Gallup poll.

This shift in public opinion is due most of all to the movement that grew up in recent years to challenge anti-LGBTQ discrimination and demand full equality. Sparked by the passage of Prop 8 in 2008, the mass mobilizations of the last few years have forced the issue of equal rights into people's consciousness--and the shifting public opinion reflected in the polls is the result.

Struggle and mobilization has swayed public sentiment, and it has the potential to have an impact again in the months ahead before the Supreme Court hears arguments in the two same-sex marriage cases. Equal rights can't wait for a change of heart in Congress or on the Supreme Court.

Many liberals are missing the opportunity to build a more broad-based struggle for LGBTQ rights because they are convinced that progress can only come gradually, state by state. This misses the opportunity to fight for equality at the federal level--by demanding that Democrats like Barack Obama, who claim in words to support LGBTQ rights, take action.

The movement should be putting pressure on Congress to repeal DOMA, rather than hoping for a good decision from the Supreme Court. If activists don't fight for full equality at the federal level, than we risk leaving many people without equal rights because they live in states where winning marriage equality will be difficult.

The struggle also has to take on the wider demands for LGBTQ people, such as youth homelessness, transgender job equality and health care. There should be protests, both local and national, before the Supreme Court hears these two cases--to build political power and display the mass popular sentiment in support of equal marriage rights.

Obama and Democrats shouldn't be let off the hook because they say they support marriage equality. Continued pressure on all fronts will help our side begin to win equal rights for all.

Ashley Simmons contributed to this article.