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Supreme Court Will Review DOMA, Prop 8 Challenges

by Antoinette Weil
EDGE Media Network Contributor
Thursday Dec 20, 2012

On December 7, marriage equality proponents heard the news they'd been waiting to hear: that the Supreme Court will review whether the Defense of Marriage Act and California's Proposition 8 violate the Equal Protection clause of the Constitution.

Since the announcement, the air has been a-buzz with hopeful excitement.

"Today is a historic moment for our nation, equality and countless gay and lesbian couples who simply want an opportunity to marry the person they love," said Herndon Graddick, president of the Gay & Lesbian Alliance Against Defamation.

Hollingsworth v. Perry examines Proposition 8, the amendment to the California Constitution that defines marriage as between one man and one woman. Windsor v. United States questions the constitutionality of DOMA with the case of Edith Windsor, who, despite being legally married to Thea Spyer, her partner of 44 years, was asked to pay enormous inheritance taxes after Spyer passed away.

"This provides an opportunity to focus on the real significant harm that DOMA causes," said James Essex, ACLU attorney for the Windsor case.

There are nearly 120,000 same-sex couples who are legally married under the law in nine U.S. states. And according to the U.S. Census bureau, one quarter of all same-sex couples, both married and in domestic partnerships, are raising children.

"While our families are already bound together by love, there is no denying that the freedom to marry will strengthen them," said Jennifer Chrisler, executive director of the Family Equality Council. "Denying some American families marriage also denies their children some of the basic protections they need in life as well as a sense of enduring security and stability."

Domestic partnerships do not afford the same rights as marriage in this country, which is at the heart of the Prop 8 argument.

"Here in Massachusetts, we’ve enjoyed the right to marry for eight years," said MassEquality Deputy Director Carly Burton. "Families are healthier, happier and safer when they are treated with fairness."

Unfortunately for gay and lesbian couples in the U.S., even the rights granted by state-sanctioned legal marriage are limited under DOMA.

As of now, legally married same-sex couples are denied rights such as sharing their health insurance or Medicaid plans with their partners, sponsoring a spouse for U.S. citizenship, and Social Security survivor benefits of a deceased partner, to name a few. In addition, they are asked to pay a slew of hefty taxes because the federal government does not recognize their partnership as legitimate.

"Not only does DOMA negatively harm real families and children, but it is also a stamp of disapproval by the government," said Janson Wu, an attorney with Gay and Lesbian Advocates & Defenders (GLAD). "It’s the government saying it’s okay to treat lesbian women and gay men differently."

Essex agreed, and noted that all same-sex couples are treated as single and as strangers in the eyes of the law.

Overturning DOMA Would Ensure Equal Rights

EDGE spoke with Jim Fitzgerald and Martin "Al" Koski, a legally married same-sex couple living in Cape Cod, MA, and plaintiffs in the case Gill v. Office of Personnel Management. Though the Supreme Court did not choose to review their case, it does provide insight into the challenges married same-sex couples face under DOMA.

Fitzgerald and Koski have been together for more than 37 years, and brought their case to trial because of the economic burden it has caused for Koski to be unable to share his federal benefits with his husband.

"Jim and I are married," said Koski. "We are a family, but we are not treated like every other family in the U.S."
"If DOMA were overturned, that would melt away," added Fitzgerald. "We would have the same rights of other couples and I could feel like a whole person."

The two have gone through many of life’s trials and tribulations together including career changes, long distance moves to be closer to family and being caretakers for Koski’s ailing father for years before his death in 1994. But it was not until after they were married and unable to share Koski’s federal benefits that the two decided to take this case forward with GLAD. And though they were surprised by all the publicity and attention the case received, they say they are happy with the decision they made.

"It will be worth all that we’ve gone through to make sure that gay men and lesbian women don’t have to go through the same struggle," said Fitzgerald.

Gay rights and marriage equality advocates agree that a win at the Supreme Court would be cause for great celebration.

"We’re moving from a world where marriage equality seemed impossible to a world where it seems inevitable," said Essex.

But some caution not to be overly confident.

"No matter how closely constitutional law strategists study, you can still get surprised," said Scott Squillace, Esq., a Boston-based attorney at Squillace & Associates.

SCOTUS Weighs Additional Questions About POTUS’ Authority

In addition to the Supreme Court’s agreement to hear and review the questions found in the Windsor and Perry cases about the constitutionality (or lack) of DOMA and Proposition 8, they have added additional questions of their own regarding the authority of the parties involved to argue these cases.

Vicki C. Jackson, an independent Constitutional Law scholar from Harvard, has been appointed by the Court to answer the added question of the Windsor case, found in the Grant of Certiorari, of "Whether the Executive branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

This may read like a mouthful, but betwixt the legal jargon lies a simple set of questions: Did the President’s proclamation that DOMA is unconstitutional and his further instruction to the Justice Department to not defend DOMA overstep his executive power? And further, is the group appointed by House of Representatives legally able to stand in for the U.S. Justice Department?

While many LGBT advocates will assert that this was a step in the right direction, that the President was "just doing the right thing," in the context of Constitutional law he was failing to do a major part of his job, which is to uphold the laws of the land.

This is not to say all is lost or that it will definitely be determined by said independent legal scholar that executive actions did deprive the Court of jurisdiction, but it should be noted that the possibility is there. And in Supreme Court cases, every possibility matters.

"This could be really bad," said Squillace. "We could win the battle and lose the war if we don’t remember our roles in the system."

Should the Court rule that the Executive branch overstretched its reach and impeded on the Judicial’s scope of power, the Windsor case, which addresses DOMA, could be tossed back down to lower court without Supreme Court Justices ever ruling on its merits. And likewise, if it is ruled in either case that the parties involved lack standing, the Supreme Court could decline to rule on the Constitutional questions at hand.

This would mean more uncertainty and more waiting for marriage equality proponents.

And of course, the possibility does exist that the Supreme Court could review these cases and decide to uphold Proposition 8 and DOMA. This would be a disappointment to equal rights advocates and gay families and individuals all over the country, but not, as I’m told, the end of the road.

"Losing wouldn’t shake the resolve of folks fighting for fairness and equal rights," said Burton. And with popular opinion trending more and more toward marriage equality, it seems a change is certainly on its way.

"This change is going to happen," assured Essex. "It is just a matter of how quickly."

For Fitzgerald and Koski, staying positive and keeping high hopes is the way to go.

"We’re hoping for the best. We’re hoping for equality. We’re hoping for recognition and we’re hoping that the Supreme Court finds that all people are created equal," said Koski.

This June we will all have a chance to see if these hopes are realized.


  • rscluff, 2012-12-20 15:46:09

    One of my new favorite quotes from one of the other stories " the opposition is literally dying, the people against gay marriage are old people and they are dying. The younger generation is fine with it." I really hope the government will see that my family is just as important as any other family.

  • Wayne M., 2012-12-21 22:40:55

    The pro-family and protect-marriage response is to support all families and all marriages regardless of the genders of the partners.

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