WASHINGTON – As same-sex marriage advances state by state, advocates are seeking a giant leap forward as they present arguments before the U.S. Supreme Court in two cases this week.
Tuesday, the high court will hear a challenge to California’s Proposition 8, an amendment to the state constitution passed by voters that defines marriage as a unique relationship between one man and one woman.
A broad Supreme Court ruling on the merits of the Prop. 8 case could establish in U.S. law a fundamental right to same-sex marriage.
A challenge to the Defense of Marriage Act will be heard the next day. The 1996 law, passed under the Clinton administration, denies federal benefits to homosexual couples and permits states to not recognize same-sex marriages granted in other states.
In both cases, which will be decided by the end of June, defenders of traditional marriage argue the divisive issue of same-sex marriage should be left to the democratic processes of each state.
As WND reported, Mathew Staver of Liberty Counsel argued in a friend-of-the-court brief that the nation’s future rests on the two marriage cases.
“The natural family is fundamental to our very existence,” Staver wrote.
However, according to a Gallup Poll conducted several days ago, by a margin of 54 to 39 percent, Americans support giving federal marriage benefits to married homosexuals.
Similarly, a December 2012 Gallup Poll, found 53 percent of Americans support same-sex marriage. Religion was the most common reason Americans reject homosexual marriage.
In Hollingsworth v. Perry, opponents of Proposition 8 contend the amendment violates the U.S. Constitution’s equal protection and due process clauses.
A decision by the U.S. Supreme Court to uphold the California Supreme Court ruling, which recognizes same-sex marriages as constitutional, could nullify the laws in 36 states that define marriage as one man and one woman. Currently, nine states, the District of Columbia and three Indian tribes recognize same-sex marriage.
Arguing on behalf of Protectmarriage.com, the group that sponsored Prop. 8, attorney Charles J. Cooper contends in court papers that the state has an interest in protecting traditional marriage because its very future depends on it.
Marriage, he argues, is “inextricably linked to the objective biological fact that opposite-sex couples and only such couples are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childbearing.”
He further points out that domestic partnership laws offer homosexuals “some of the most comprehensive civil rights protections in the nation.”
In opposition to Prop. 8, lawyers Ted Olson and David Boies are asking the Supreme Court to find a fundamental right to same-sex marriage in the Constitution.
They write: “The unmistakable purpose and effect of Proposition 8, is to stigmatize gay men and lesbians – and them alone – and enshrine in California’s Constitution that they are unequal to everyone else, that their committed relationships are ineligible for the designation ‘marriage’ and that they are unworthy of that most important relation in life.”
Many analysts believe Justice Anthony Kennedy will cast the deciding vote, with associate justices Stephen Breyer, Ruth Bader Ginsberg, Elena Kagan and Sonia Sotomayor ruling in favor of same-sex marriage. Chief Justice John Roberts and associate justices Samuel Alito, Antonin Scalia and Clarence Thomas are expected to rule against it.
Defenders of traditional marriage have much to be concerned about with respect to Kennedy’s position on “gay rights,” considering he voted to overturn Texas’ ban on sodomy in Lawrence v. Texas in 2003
Kennedy wrote in his opinion: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.”
WND CEO Joseph Farah writes in his daily column that while Kennedy, a Reagan appointee, has been a disappointment as a swing vote, he made a statement earlier this month “that was somewhat encouraging.”
Kennedy told reporters from his hometown, Sacramento, that legislating from the bench is “a serious problem.”
“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said.
Defense of Marriage Act
The federal Defense of Marriage Act, or DOMA, denies federal benefits to couples in homosexual marriages and allows states the liberty not to recognize homosexual marriages performed in other states.
The case, United States v. Windsor, was brought by 83-year-old Edie Windsor of New York, who had married Thea Clara Spyer in 2007 after living together for 40 years. Windsor was denied a federal estate tax exemption on Spyer’s estate under DOMA.
In February 2011, the Obama administration announced it would no longer defend the law in court.
Attorney General Eric Holder wrote on behalf of the White House, that the administration supported federal benefits for married same-sex couples.
“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder wrote.
“The President has also concluded that section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”
In place of the Obama administration, House Republicans have stepped in to defend DOMA. The justices will have to decide first whether the group led by the House Republicans, the Bipartisan Legal Advisory Group, or BLAG, has “standing” to defend DOMA and whether the Supreme Court has jurisdiction to hear the case.
Paul D. Clement, the lead lawyer for BLAG, argues in his briefs that the federal government is not interfering with any state laws but ensuring federal benefits are distributed uniformly.