GUEST BLOG: Breathtaking victories for the LGBT movement

By Clifford J. Rosky
Associate Professor of Law
University of Utah's S.J. Quinney College of Law

Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8.  In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment.  In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law.  Before long, same-sex couples will once again be marrying in California.  In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.

By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement.  As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws.  Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick.  In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii.  In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.

Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound.  Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married.  With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.

More than anything else, this is how progress happens—in the interactions of everyday life.  People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us.  A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues.  That’s a tremendous number of family and friends, not to mention photographers and caterers.  By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.

Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states.  Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.

In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional.  In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.”  As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”

Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades.  Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.”  In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids.  In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall.  In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.

I have to admit, all of this language in Windsor came as a pleasant surprise to me.  Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles.  Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.

>>Hear excerpts from the oral argument

During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.”  As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you're – you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”

In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights.  Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues.  Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view.  During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling.  To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.

In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights.  After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.

>> Read AFJ's response to the marriage equality victories
>> Read more about marriage equality.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law. Read Prof. Rosky's previous post on the marriage equality cases.

From SCOTUSblog: A one-two punch to the nation’s most prominent antigay laws

Prof. Suzanne Goldberg, who analyzed the marriage equality cases for Justice Watch when they were argued before the Supreme Court, has now analyzed the decisions for SCOTUSblog:

The late Dr. Thea Spyer and her wife,
Edith Windsor, who won her case today.

The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

Yet reaching this conclusion was not a constitutional stretch. ...

Read the full post at SCOTUSblog
Read AFJ's response to the decisions

Good decisions on marriage equality, bad decision on Voting Rights Act leave America part equal and part unequal

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decisions in United States v. Windsor and Hollingsworth v. Perry:

AFJ President Nan Aron speaks
at a rally in support of marriage equality
when the cases were argued in March

We strongly applaud the decisions in United States v. Windsor and Hollingsworth v. Perry and look forward to the implementation of marriage equality in California and to the application of full federal rights to all same-sex married couples nationwide. This is a great day, not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.

We are mindful, though, that although today the arc of history bent a little more toward justice,  there still is a long way to go.  This week’s conflicting decisions by the Supreme Court on marriage equality and voting rights are at once profoundly hopeful and deeply disappointing.

Even as we celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County V. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.

Taking these cases together, we are concerned that this Court, by moving in opposite directions simultaneously, has once again left the nation part equal and part unequal.  Regrettably, this Supreme Court majority has seen fit to give with one hand, while taking with the other. The struggle for a full measure of justice for every American must continue in our own time, as it has since our nation’s founding. As Fannie Lou Hamer said so well, “Nobody’s free until everybody’s free.”

Read More:
● AFJ Audio Analysis of the marriage equality cases.
● Read more about marriage equality.
●Videos from AFJ’s luncheon celebrating marriage equality victories in the states.
● Video: AFJ President Nan Aron’s call for marriage equality during a rally at the Supreme Court in March.
● AFJ Audio Analysis of the Voting Rights Act case.
● Read more about the Voting Rights Act.

The Justice doth protest too much

You can listen to the comments from Justice Scalia described in this post here:



Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuels wrote that

there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss? 

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California.  Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage.  So Justice Scalia tried to help him out, declaring:  

Justice Antonin Scalia

I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­ there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.

Scalia is wrong.  As Prof. Clifford Rosky pointed out in his guest post to this blog: 

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

 Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage.  But what do pediatricians know about children anyway?  It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage.  The organization said so in an amicus brief filed in this very case.  The brief notes that 

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

We’ve previously noted this Huffington Post story which points out: 

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy or cruelty to animals -- and could exhibit even 'animus' toward such conduct." And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' -- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity."

 Justice Scalia has an interesting definition of “takes no position.”

Making history at the Supreme Court

This week, the Supreme Court hears two cases in which the stakes couldn’t be higher.  The question: Who can get married?

The late Dr. Thea Spyer and Edith Windsor

AFJ is playing a lead role in the fight for marriage equality.

Today: We’re asking you to show your support for marriage equality by signing our “thank-you card” to Edith Windsor who, at age 83 has taken her challenge to the so-called defense of Marriage Act all the way to the Supreme Court.

● Sign the card 

● Read more about Edith Windsor

Tomorrow and Wednesday: Join us outside the Supreme Court for rallies in support of marriage equality.  And if you’re not in Washington, take part in one of more than 160 events across the country.

● Find out more about how you can support marriage equality.

Tomorrow: As the Supreme Court hears Hollingsworth v. Perry, a challenge to California’s Proposition 8, we’ll analyze the oral arguments – using excerpts from Supreme Court audio.  It’s all part of our new AFJ Audio Analysis project.  Click here Tuesday afternoon to become an “ear-witness to history.”  And check back here at Justice Watch for additional commentary from leading legal scholars.

Wednesday: AFJ President Nan Aron speaks at the rally outside the Supreme Court supporting marriage equality.  We’ll have video at www.afj.org

Wednesday: Our Audio Analysis project continues with analysis of the arguments in United States v. Windsor, the case challenging DOMA.

Check www.afj.org for the latest updates.