Supreme Court DOMA: After Decades of Battle, Gay Rights Set to Have a Landmark Year

Update: The Supreme Court has announced that it will hear arguments in Windsor v. United States and Hollingsworth v. Perry, cases challenging the Defense of Marriage Act and California's Prop 8, respectively. Arguments are expected in March 2013, with decisions to be issued by June 2013.

When Edith Windsor married life-long partner Thea Spyer in 2007 after 42 years together, neither of them imagined that their exchange of vows could land them in front of the Supreme Court in a potentially landmark year for civil rights in America.

Their relationship spanned every presidential administration since Lyndon B. Johnson, but in the eyes of Windsor and Spyer, the length of the relationship wasn’t as important as the love they shared together.

"We were mildly affluent and extremely happy," Windsor said, describing her relationship with Spyer. "We were like most couples."

But in the eyes of the state, they were anything but like most couples.

Despite being together for more than four decades, Windsor and Spyer were forbidden from legally marrying in their home state of New York because they were both women and New York did not recognize same-sex marriage. Sick of waiting for the law to catch up, Windsor and Spyer “eloped” north to Canada, formalizing their union by marrying in Toronto in 2007.

Shortly after finally being able to tie the knot courtesy of our neighbors to the north, the couple’s dream of having their commitment recognized in their home state suddenly became reality. In 2008, a New York trial court ruled that a same-sex marriage conducted in Canada must be recognized by the state, a landmark ruling that helped break the logjam on gay rights and marriage equality legislation in the Empire state. For the first time since before Neil Armstrong took man’s first steps on the moon, Windsor and Spyer were able to say they were legally married in their home country.

Unfortunately, the joy of being able to recognize their union at home was short lived. Spyer passed away from a sudden heart attack in 2009. While dealing with the trauma and grief of losing her longtime partner and companion, Windsor was put on notice of another problem: while the state of New York recognized their Canadian marriage, the federal government, in accordance with the 1996 Defense of Marriage Act (DOMA), did not.

Under DOMA, which defines marriage as between one man and one woman, the federal government could not offer the same legal rights or protections to same-sex couples that it did to heterosexual couples at the time of Spyer’s death. For all legal intents and purposes, Spyer and Windsor were merely friends under federal law. So when Spyer left Windsor her estate, a standard practice among married couples, the IRS sent Windsor a bill for the full $363,053 in taxes owed on her inheritance.

Windsor sued, arguing that because New York had subsequently adopted legislation according full rights to same-sex couples, the IRS’s discrimination against Windsor on the basis of her sexual orientation was both an unconstitutional conflict with state law and a violation of her rights.

Windsor’s challenge coincided fortuitously with the Obama administration’s decision to no longer defend DOMA’s constitutionality. Her case made its way through the federal courts, with both a federal trial court and federal appellate court ruling in her favor.

The Bipartisan Legal Advisory Group, the organization that took over defense of DOMA on behalf of the House of Representatives after the administration refused to do so, appealed the case to the United States Supreme Court.

Windsor’s suit joins a handful of others vying for the Supreme Court’s attention this fall. Litigation efforts, spearheaded by gay rights advocates and buoyed by the legalization of same-sex marriage in several states, have finally brought the issue of marriage equality to the Supreme Court’s doorstep.

The challenges to DOMA and California’s Proposition 8, which outlaws gay marriage in that state,  come to the Supreme Court with a flawless record of victories at the federal trial and appellate levels, teeing up 2013 to be a potentially watershed year for gay rights in America.

The number and content of the cases knocking on the Court’s door all but guarantees that the Justices will hear their first case addressing gay rights in nearly a decade. The question is, will gay rights be better off after the Justices have their say?

Evolving Standards

Roughly a decade ago, in June of 2003, many equality advocates were nervously considering the same question. Earlier that year, the Court had heard arguments in Lawrence v. Texas, a controversial case challenging the constitutionality of a Texas law that criminalized gay sex.

Advocates had plenty to worry about. The law was very similar to a Georgia law upheld by the Supreme Court in 1986 and laws on the books in 13 other states. John Lawrence, the defendant in the case, had been convicted at trial of having sex with another man in his apartment, and his conviction was upheld by the Texas courts on appeal. The makeup of the Supreme Court hearing Lawrence’s case had a generally conservative majority and was not expected to contravene long-standing precedent. By many accounts, the outlook was grim for the legal status of gay rights in America.

To many people’s surprise, the Court bucked expectations and, in a landmark decision, handed down a 6-3 ruling that effectively reversed decades of precedent and declared that laws which criminalized such conduct were unconstitutional violations of due process and privacy.

The Lawrence majority, authored by conservative Justice Anthony Kennedy, ruled that the Texas law “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 

Addressing past precedent, Kennedy stated that the Court’s prior decision on the Georgia law “was not correct when it was decided, and it is not correct today.” 

Kennedy wrote that Lawrence was “entitled to respect” for his private life, and concluded that “the State cannot demean [his] existence or control [his] destiny by making [his] private sexual conduct a crime.”

The majority’s ruling elicited a powerful response from the Court’s three dissenting conservatives. Justice Antonin Scalia penned a now famous dissent in which he accused the majority of “sign[ing] on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia argued that in its ruling, “the Court ha[d] taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

Much has changed since the Supreme Court handed down its decision in Lawrence.

Nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, and Washington) and the District of Columbia legalized same-sex marriage. Minnesota became the most recent state to reject, by popular vote, a measure banning same-sex marriage.

At the federal level, the Obama administration has formally repealed Don’t Ask, Don’t Tell, the policy that prevented gays from serving openly in the military, and has stopped defending against legal challenges to DOMA.

While such change over 10 years is stunning, a step back to look at the entire picture provides sobering context for advocates of gay rights.

During the same time period, 30 states enacted constitutional amendments restricting marriage to one man and one woman. Nineteen of those states went even further, enacting laws that impact other legal relationships such as civil unions and domestic partnerships. Eleven other states put laws on the books restricting marriage to one man and one woman.

The fight occurring at the state level underscores the importance of the cases seeking an audience before the Supreme Court this fall. The Justices’ choice of which case to hear will give insight as to how the Court’s eventual ruling will alter the fight surrounding marriage equality.

Judicial Politics

Nobody doubts that a ruling from the Supreme Court could serve as a transformative moment for the gay rights movement. Much in the same way that Brown v. Board of Education was the legal spark that re-invigorated the movement to end racially discriminatory laws across the country and push through the Civil Rights Act of 1964, many believe that the marriage equality cases have the potential to play a similar role in promoting gay rights.

No one understands this truth better than the Justices sitting behind the columns at One First Street.

Of the Lawrence dissenters, only two (Scalia and Thomas) remain on the Court. While the conservatives hold a majority, their fifth vote resides in an ever-shifting Justice Anthony Kennedy, the author of the Lawrence majority. The liberal wing of the Court similarly depends on Justice Kennedy’s undependable vote, making any gay rights case a gamble.

The reality of a Court opinion that would enshrine marriage equality as a constitutionally protected right leads to a whole new level of political gamesmanship that is unique to the conference table of the Supreme Court.

The Justices vote on cases seeking review by the Supreme Court in order to determine which cases make the docket and which cases are sent back with a curt “no thanks.” Four votes are required to place a case on the docket, meaning that both the liberal and conservative wings of the Court could push through cases they felt best positioned for a particular outcome. However, deciding whether to hear a case is far more complex than simply knowing the votes around the table.

For example, if a Justice were to promote a case with three like-minded colleagues, the remaining five Justices could still team up to author a decision unfavorable to the views of the Justices that promoted it. Should this happen, the chances of the promoting Justices getting another bite at the apple on that question of law could be delayed by decades. Conversely, pushing through an underdog of a case with four votes and winning the fifth at argument could launch an otherwise languishing area of the law into the spotlight of legislation and politicking. Similarly, even when a case may have had favorable rulings in lower courts, a Justice may be unwilling to risk the possibility of reversal and be content to let sleeping dogs lie.

This horse race of case selection is perhaps the most impactful form of backroom policy-making anywhere in government, and it will be absolutely crucial to determining how, or if, the Court will hear questions concerning gay rights.

Picking the Standard Bearer

The Supreme Court has plenary power to determine which, if any, of the marriage equality cases it will hear this term. The Court could choose to hear all of them or refuse to hear any. However, the handiwork of the lower federal courts makes it highly unlikely that the Justices will elect to punt.

The fact that the lower courts that have heard the challenges have unanimously come down in favor of marriage equality leaves the Justices in a tough bind. Should they choose to not hear these cases, the lower court rulings would remain valid.  If other federal courts reach different results before the Supreme Court hands down a guiding ruling, the precedent would create inconsistent and conflicting laws throughout the circuits. This so called “circuit split” would guarantee that other cases challenging the constitutionality of discrimination against gays would continue to reach the Court until the Justices finally decided to hear a case and issue a ruling.

Moreover, the fact that two federal appellate courts have declared a federal law unconstitutional (with a third poised to follow suit in the next few months) raises a legal issue that only the Supreme Court can put to rest. If the Supreme Court were to take a pass on these cases, the Justices would leave some federal courts treating DOMA as good law and the rest pretending it no longer exists. This tension would inevitably lead to judicial chaos that the Justices would be keen to avoid.

Of the cases petitioning the Court for review, three big-ticket ones concerning marriage equality stick out as having the best shot at receiving a place on the Court’s docket.

From California comes the legal challenge over Proposition 8. The challengers in the casecontend that Prop 8 violated the federal Constitution by discriminating against same-sex couples in violation of the Due Process and Equal Protection clauses. Both the federal trial and appellate courts sided with the challengers, declaring the law unconstitutional and concluding that it served no other purpose than to “lessen the status and human dignity of gays and lesbians.”

From the Northeast comes a duo of cases arising out of challenges to DOMA. The first, Massachusetts v. United States, appropriately arrives in Washington courtesy of the first state to recognize and offer same-sex marriage to its citizens. The case began in 2009, when Massachusetts Attorney General Martha Coakley brought suit against the United States Department of Health and Human Services, challenging the constitutionality of DOMA’s definition of marriage as exclusively between one man and one woman. Coakley contended that the federal law conflicted with state law and unconstitutionally discriminated against same-sex couples. (Note: The case was combined with the prior case of Gill v. Massachusetts. If heard, they will be heard together).

Just as in the California case, both the trial and appellate courts ruled in favor of Massachusetts and concluded that the federal government overstepped its authority by defining marriage federally. They recommended “closer scrutiny of government action touching upon minority group interests,” especially in the context of gay marriage.

The final case takes us back to the continuing saga of Edith Windsor, as she fights to have her marriage to Thea Spyer recognized by the U.S. government.

Regardless of which case they choose to hear, the Justices are likely to affirm the decisions of the courts below and rule that neither federal nor state governments can arbitrarily restrict the marriage rights of same-sex couples. Determining the true breadth and impact of such a ruling is impossible to do without a formal opinion, but the tide of inevitability leans heavily in favor of gay rights advocates in the coming year.

For Edith Windsor, this fall’s Supreme Court session marks the final stop on her three year journey for federal validation of her marriage to her life-long partner. “This law violated the fundamental American principle of fairness that we all cherish,” said Windsor following the appellate court ruling that declared DOMA unconstitutional. "I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity."