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News Analysis: How Will the Supremes Rule on Marriage Equality?

by Kilian Melloy
Tuesday Dec 11, 2012

The world will not end on Dec. 21, 2012, but for gay families it might get considerably more complicated... or blessedly more equal, or perhaps even both at once... once the Supreme Court issues its rulings on two monumentally important cases, with rulings expected sometime in mid-2013.

The two cases involve the constitutionality of the anti-gay federal law, the "Defense of Marriage" Act," which then-President Bill Clinton signed into law in 1996. DOMA takes vicious, pitiless aim at same-sex couples and their children by singling them out for blanket denial of all federal recognition, including benefits like tax breaks and Social Security benefits.

The plethora of complications this raises for gay families is staggering; States are free to ignore the marital status of wedded single-gender couples from marriage equality states, and similarly opens the door for parents to be rendered legal strangers to their own children simply by crossing a state line.

Married couples in the states that recognize their unions know firsthand how the federal tax code punishes them. I should know: Every year my husband and I file jointly for state taxes in Massachusetts, and thenhave to prepare separate filings for Uncle Sam. It usually costs us between $600 to $1,000 in additional taxes that we would not have to pay if DOMA did not deny us equal treatment before the law on a federal level.

If one of us were to die, the other could be left facing a hefty -- perhaps even confiscatory -- tax bill. Irony of ironies: If the Tea Party had not become so blatantly homophobic, just think of the appeal it would have had for families like ours thanks to its stance on taxation issues!

What Being 'A Suspect Class' Means
President Barack Obama single-handedly delivered to our families a huge and potentially game-changing gift by deeming gays and lesbians a "suspect class." No, not suspect as in somehow untrustworthy or menacing or criminal -- that's the stance of anti-gay groups like the National Organization for Marriage (It was NOM, remember, that insisted that all the GOP hopefuls for the 2012 presidential election sign a pledge to investigate gays on the basis of allegations that marriage equality advocates had threatened violence against supporters of Proposition 8, the anti-gay law that stripped gay families of their then-existing marriage rights in 2008.)

No, this "suspect class" refers rather to a class of people who, through their essential and unalterable identities, are different from the majority and are, as a result, persecuted for their differences. Gays and lesbians have known for decades that this description fits us, and we've spoken out about it for decades too.

It was only when Obama put us in that "suspect class" category and refused to defend DOMA in federal courts, where the law has been taking a beating, did we gain official recognition that we are who we say we are: People who were born to be sexually and romantically attracted to those of our own gender. In other words, we didn't "choose" the "lifestyle" of gays and lesbians in order to piss people off or make some kind of political statement. It's who we are -- and who we are supposed to be.

Hearing Prop 8: A Mixed Blessing
The Supreme Court will also be ruling on the constitutionality of Proposition 8, which was a terrifying benchmark in the politics of big-money cynicism. The anti-gay side spent around $80 million lying to California's parents, telling them that marriage equality for gay adults would somehow translate into classroom pressure to turn innocent children gay. (More of the same "choosing to be gay" baloney, in other words.) Our rights should never have been subject to popular vote in the first place, but for the voters of California to yank existing marriage rights out of the hands of gay families is, the courts have so far agreed, a violation of our rights under the Equal Protection clause of the U.S. Constitution.

The court could simply have declined to hear the Prop 8 case, with the result that the appeals court decision upholding the original ruling against Prop 8 would have stood and marriage rights would have been restored in California. It's either deeply troublesome that the Court agreed to hear the case, or cause for jubilation.

Here's the problem: If the court wants to roadblock social progress and family rights for gays for decades to come, then agreeing to hear the case with an eye to striking down Judge Vaughn Walker's original ruling against Prop 8 is one way to do it. There would be the possibility of all sorts of collateral damage.

Once a fundamental right of one minority can be rescinded at the ballot box, the reasoning goes, what protects the rights of any other minority group? But this, in turn, could pave the way for endless, expensive and stressful challenges to marriage equality in any or all of the nine states and the District of Columbia where marriage equality either is a reality now, or soon will be.

On the other hand, a Supreme Court finding that upholds Walker's original ruling, and the ruling that the appeals court handed down affirming Walker's judgment, could potentially rid the entire country of the anti-gay language now enshrined, via plebiscite, in the constitutions of 31 states. That seems a little unlikely, given that the Supreme Court does not tend to make extraordinarily radical rulings.

Next: The Danger: A Restricted Ruling


  • Bob K, 2012-12-11 04:14:56

    Notice that the 9th Circuit judge who dissented on affirming Walker’s ruling is a MORMON in Idaho, where his family would likely have been ostracized if he voted for fairness in the Prop 8 case. Roberts faces being the "anti-rights bigot Chief Justice" in the review of this case. In the DOMA challenge, I am thinking that the provision directly affecting Ms Windsor will be struck down, but the overall unfair law may stand.

  • Oh Jed said:, 2012-12-11 08:07:35

    We can certainly drive ourselves crazy with speculation. I’ve read every single analysis that has hit my news feeds and am no closer to feeling confident about my opinion of potential results. One thing I DO know, it’ll certainly be interesting to see how they craft an eloquent and truly logical ruling if bias against us is any part of their decision.

  • JerryInSoCal, 2012-12-11 18:03:11

    My partner is a German national, so DOMA decision is very important to us. One comment he made recently sticks with me: "if the US Courts rule against the LGBT community, the US will be last on civil rights in the first world countries. Other countries are watching the US closely."

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