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.

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.”

AFJ's Nan Aron at today's rally for marriage equality at the Supreme Court

As the Supreme Court heard oral arguments concerning the so-called Defense of Marriage Act, Alliance for Justice President Nan Aron was among the speakers at a rally outside the Supreme Court:

There's much more, including the text of Nan's remarks, at www.afj.org

"Voice of the children": Proposition 8 and LGBT families

You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.

by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law
 
In today’s arguments on the constitutionality of California's Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.

But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.

In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.”  Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to...whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.

To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, 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.”

Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury...and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law.

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.

President Obama’s other audience

Will the Supreme Court help America complete its journey

 – or throw obstacles in the way?

When President Obama gave his second inaugural address Monday, it’s estimated that one million people gathered on the National Mall to hear him.  Tens of millions more heard the speech on television, radio or online.

But there also was a much more select audience – an audience of nine, seated just a few feet from the president.  Because several issues the president raised will be profoundly affected by actions of the United States Supreme Court, in some cases, within the next few months.

The president said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.

And, in marking civil rights landmarks, the President pointedly included “Stonewall” along with Seneca Falls and Selma.

The Supreme Court can speed the journey, by voting to strike down the so-called Defense of Marriage Act, and upholding the ruling by the 9^th Circuit Court of Appeals that California’s Proposition 8 is unconstitutional.  Or the court can make it a much longer, more tortuous journey by upholding discrimination.

The president said:

We the people declare today that the most evident of truth that all of us are created equal -- is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

And he said:

Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.

The famous march from Selma to Montgomery was a march for the right to vote – a right won with passage of the Voting Rights Act of 1965.  But now, a challenge to a key provision of that law could significantly setback the progress won by Dr. King and those who marched with him.

The president said:

Together we discovered that a free market only thrives when there are rules to ensure competition and fair play.

But over and over again, the Supreme Court majority has bent those rules to favor corporate special interests at the expense of the rest of us, something documented in detail in our First Monday documentary, Unequal Justice.

This term, the Court may bend the rules again, when it returns to the issue of forced arbitration in the case of American Express Co. v. Italian Colors Restaurant.

And, of course, the president alluded to the tragedy of gun violence:

Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.

The Supreme Court already has made that part of the journey more difficult.  The right-wing activist majority radically reinterpreted the Second Amendment, discovering an individual right to bear arms where none existed before.

Chief Justice John Roberts administers the Oath of Office

--White House photo

But even Justice Antonin Scalia did not close the door to all regulation of guns.  And whatever Congress may do in response to the Newtown tragedy, the Supreme Court may well have the final word.

That’s why something President Obama did not mention is at least as important as all of the subjects he raised in an excellent inaugural address: the need for a progressive judiciary – on our federal district courts, on our circuit courts of appeals and on the United States Supreme Court.

Scalia: A round-up of the responses

Antonin Scalia

By now you've probably read Justice Antonin Scalia's appalling comments explaining how he justifies equating laws banning sodomy with those barring bestiality and murder.  (And if you haven't you can catch up with them here.)

Fortunately, there have been some important responses from, among others:

• The New York Times
• The Washington Post
• The Daily Beast
• Salon
• And cartoonist Tom Toles

Of course the most important response will come when all nine justices rule on cases involving the so-called Defense of Marriage Act and Proposition 8.  The night before the Supreme Court decided to take those cases, panelists at AFJ's Conversation with Jeffrey Toobin previewed the issues:

Video highlights from AFJ's Conversation with Jeffrey Toobin

We've put several excerpts from AFJ's Conversation with Jeffrey Toobin on our YouTube page.

In addition to the portion of the discussion dealing with DOMA and Proposition 8 (also available on this Blog here) there's a discussion of the impact of the three women justices on the Supreme Court, and a dialogue about presidents and the court.

There's also the answer to the question: Did Justice Scalia really call Justice Thomas "a nut"?

The entire video is at www.afj.org 

AFJ's Nan Aron on today's Supreme Court actions on DOMA and Prop. 8

Supreme Court can bend the arc of history toward justice

WASHINGTON, D.C.,  Dec. 7, 2012: — Alliance for Justice President Nan Aron issued the following statement concerning the Supreme Court’s decision Friday to hear cases on the so-called Defense of Marriage Act and on California’s Proposition 8.

Today, the U.S. Supreme Court has decided to hear a group of cases in which the stakes could not be higher.  If the Court strikes down Section 3 of the so-called Defense of Marriage Act (DOMA), it will make millions of legally-married same-sex couples truly equal in the eyes of the federal government.  It will do the same for same-sex couples who want to marry in the future.

A ruling against Section 3 would send an important message: The nation’s highest court refuses to countenance discrimination.  But it also would have immediate, concrete benefits.

            A ruling against Section 3 will ensure married same-sex couples enjoy equal access to a huge range of benefits that the rest of us take for granted.  DOMA denies Social Security death benefits, spousal disability benefits and survivor benefits to same-sex spouses.  DOMA prevents same-sex spouses from taking family medical leave.  DOMA even can separate spouses of different nationalities. 

The stakes are every bit as high in the case involving California’s Proposition 8.  If the Supreme Court upholds the 9^th Circuit Court of Appeals ruling that Proposition 8 is unconstitutional, it will restore the right to marry for same-sex couples in California and, perhaps, send an important signal to the rest of the nation.  It would be a decision for family values in the truest sense of the term.

                The last time the U.S. Supreme Court ruled on who can get married, it bent the arc of history toward justice, ruling that banning interracial marriage is unconstitutional.  Now the Court has the opportunity to bend the arc of history toward justice again, by ruling Section 3 of DOMA unconstitutional. 

                In 1835 Alexis de Tocqueville wrote that, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”  In a nation in which not just political, but the most fundamental human questions can become judicial questions, today’s actions highlight once again the critical importance to American life of who sits on the United States Supreme Court.

For more on DOMA check out this excerpt from last night's AFJ-sponsored discussion in New York.

What will the Supreme Court do about DOMA and Proposition 8?

The Supreme Court may decide as early as this afternoon whether to hear one or more cases concerning the so-called Defense of Marriage Act.  It also may hear a case concerning California's Proposition 8.  In this excerpt from AFJ's discussion in New York City last night, AFJ President Nan Aron, Jeffrey Toobin of CNN and The New Yorker, Slate Senior Editor Emily Bazelon and Prof. Kenji Yoshino of New York University School of Law explain the cases and discuss what the Supreme Court might do:

T 

SCOTUSblog's Tom Goldstein on history-in-the-making

Tom Goldstein

[UPDATE 3:40 p.m.: SCOTUSBlog reports that the Court took no action on these cases at today's conference.  The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday.]

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

Read his full post here.

Check out AFJ’s guide to the cases here.

Why Judges matter: Is DOMA really doomed?

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9^th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?

DOMA and Prop 8 Cases Inch Toward the Supreme Court

Over the past decade, movement on marriage equality has been in two opposing directions, with some states passing laws to allow same-sex marriage and others passing laws to prohibit such unions. In addition to the legislative strategy, some advocates have pursued a litigation strategy, which has paid increasing dividends as several federal courts have recently ruled that efforts to deny same-sex couples the right to marry are unconstitutional.

In February, the Ninth Circuit struck down California’s Prop 8 (the voter-enacted ban on same-sex marriage) and just a few days ago declined to rehear the case en banc, while at the end of May, the First Circuit ruled DOMA’s section 3 (defining marriage as between one man and one woman) unconstitutional. The Supreme Court is likely to hear at least one of these cases during the term that begins in October, adding same-sex marriage to the long list of political hot button issues on its docket.

DOMA’s two operative paragraphs make it an unusually short yet damaging piece of legislation. The law allows the federal government to deny economic and other benefits to lawfully married same-sex couples and threatens states that recognize same-sex marriage (like Massachusetts) with cuts to programs like Medicaid. DOMA’s Section 3 operates to effectively deny married same-sex couples the rights and benefits that apply to heterosexual couples.

With its unanimous ruling, the First Circuit became the first federal appellate court to rule that DOMA is unconstitutional. Several federal district courts, including California’s Northern District and the Southern District of New York, have also declared DOMA unconstitutional. (The Ninth Circuit will hear oral arguments in yet another DOMA challenge during the week of September 10th).

In its May 31 opinion, the First Circuit looked to the harmful effects of the legislation on states and individual citizens when deciding whether those effects served to advance Congress’ goal of protecting heterosexual marriage. However, the three-judge panel was not as ambitious as the Northern District of California when reviewing DOMA’s constitutionality, calling for “closer than usual” review of its discriminatory effects on same-sex couples rather than applying “heightened scrutiny,” as the court in California did.

It is all but assumed that the losing party in the First Circuit will appeal to the Supreme Court. This is such a foregone conclusion that the First Circuit stayed its decision pending appeal, and seemed to be directing its reasoning toward the “swing justice” – Justice Anthony Kennedy. The unanimous opinion relies heavily on Justice Kennedy’s opinions in Lawrence v. Texas and Romer v. Evans. In Lawrence – involving a Texas anti-sodomy law – the Court warned that moral disapproval alone could not justify criminalizing specific behavior, while Romer stands for the proposition that a state cannot deny an entire class of persons the ability to seek equal protection under the law. It is well-known that lawyers and advocates go to great lengths to sway his pivotal vote, and these are cases in which his vote would almost certainly be pivotal.

When these cases reach the Supreme Court, the goals of DOMA and Prop 8 will be examined in terms of those laws’ effects. While DOMA supporters claim that the law saves the federal government money by denying certain benefits to same-sex couples, the First Circuit said that recent studies suggest otherwise. Furthermore, there is no empirical evidence to support the claim that legalizing same-sex marriage discourages heterosexual marriage. In its relatively modest ruling, the First Circuit said that denying federal benefits to same-sex couples lawfully married in Massachusetts “has not been adequately supported by any permissible federal interest.”

In its opinion, the First Circuit reiterated the status of same-sex couples as a disadvantaged and politically unpopular group. The First Circuit’s ruling illustrates an emerging consensus among courts that the rights of same-sex couples should not be denied without at least some question as to the discriminatory results of laws like DOMA or Prop 8. Even without the level of skepticism in the Northern District of California opinion, the First Circuit still chose to review DOMA under a higher than usual standard.

If the Court hears either or both of these cases, it may decide to rule on a question as narrow as whether the federal government and all states must recognize same-sex marriages performed lawfully under the various state laws, or as broad as declaring any state ban on same-sex marriage unconstitutional. The Court will have a historic opportunity to move the country forward on marriage equality, or to erase the progress that has been made over the last several years.

The Proposition 8 ruling: How did we get here?

Advocates working to restore the rights of same-sex couples to marry in California won an important victory this week when a three-judge panel of the Ninth Circuit found that Proposition 8, an amendment to California's constitution that banned gay marriages, violates the U.S. Constitution.

Like many civil rights battles, the path to this victory has been a long one, and we thought it might be helpful to share this brief timeline of the legal battle over Proposition 8:


March 7, 2000 – California voters approved Proposition 22, which amended state law to bar the recognition of same-sex marriages.

February 12, 2004 – San Francisco authorizes the issuance of marriage licenses to same-sex couples, issuing 3,955 marriage licenses.

August 12, 2004 – The California Supreme Court rules that San Francisco exceeded its authority by issuing marriage licenses to same-sex couples and declares the 3,955 marriage licenses null and void. San Francisco responds to this ruling by challenging the constitutionality of Proposition 22 in the California state court system.

May 15, 2008 – The California Supreme Court found that Proposition 22 violated the California constitution. Opponents of marriage equality had already begun working on a proposed amendment to the California constitution, carving out an explicit constitutional exception for these laws.

June 2, 2008 – Proposition 8 qualified for the ballot.

June 17, 2008 – The State of California begins issuing marriage licenses to gay and lesbian couples.

November 4, 2008 – Prop 8 passed by popular vote, with 52% of Californians voting to amend the state constitution, and therefore invalidated the California Supreme Court’s finding that laws banning same-sex marriage were unconstitutional.

November 5, 2008 - Advocates challenged Proposition 8 in state court, claiming that the ballot initiative process violated the state constitutional procedures for enacting amendments to the state constitution.  This legal challenge was not successful.

March 5, 2009 – Arguments were made in the California Supreme Court challenging the validity of Proposition 8.

May 23, 2009 – Same-sex couples in California challenged Proposition 8 in federal district court as violating the 14th Amendment of the United States Constitution.

May 26, 2009 – After hearing arguments in March, the California Supreme Court ruled that Proposition 8 validly amended the state's constitution, and was therefore a lawful and valid action.

January 11, 2010 – Challenge to Proposition 8 heard in federal court in the Northern District of California.

August 4, 2010 – Judge Vaughn Walker of the Northern District of California ruled that Proposition 8 violated provisions of the 14th Amendment of the U.S. Constitution. Proponents of Proposition 8 swiftly appealed the decision to the Ninth Circuit Court of Appeals.

November 17, 2011 – The California Supreme Court responded to the Ninth Circuit's request for advice on whether the Proposition 8’s backers should be allowed to appeal the case to the Ninth Circuit (even though state officials would not challenge Walker’s ruling), concluding the state should not bar the case from being appealed.

February 7, 2012 – The Ninth Circuit upheld the district court ruling, declaring Prop 8 unconstitutional because it violated the Equal Protection clause of the 14th Amendment by stripping away a right once granted to all people in California—the right to marry—from a particular group.