Landmark gay marriage cases go before U.S. Supreme Court

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WASHINGTON -- The gay couples and social conservatives who lined up outside the U.S. Supreme Court on Monday can agree on one thing: The arguments inside this week could have a lasting effect on society and civil rights.

Snow fell on members of the crowd as they waited, some in tents and under tarps, for a chance to hear arguments in a pair of landmark same-sex marriage cases scheduled for today and Wednesday.

This morning's arguments focus on the constitutionality of California's Proposition 8, which banned gay marriage. On Wednesday, the justices will consider whether the federal government must extend benefits such as tax exemptions to gay couples who wed in states that recognize same-sex marriage.

First, participants in both cases must establish they have standing -- or tangible interest in the outcome. If they don't clear that bar, the court won't get to rule on the central questions of the cases.

The first case was brought by Proposition 8 supporters. California voters amended the state constitution to ban gay marriage in 2008; the ban was overturned on appeal, and California officials declined to appeal the ruling against them. A federal appeals court, although it affirmed the lower court ruling, said that Prop 8 supporters had standing to continue to appeal the case.

The second case was brought by Edith Windsor, who challenged the 1996 Defense of Marriage Act, which requires that the federal tax code treat same-sex couples as unmarried. The U.S. Justice Department declined to challenge an appeals court ruling striking down DOMA as unconstitutional, so congressional Republicans hired counsel to defend the act.

A wide range of decisions is possible, including one that would open the doors to gay marriage nationwide. Other decisions could leave the issue to the states or extend full marriage benefits to all couples in domestic partnerships. A narrow ruling that California denied equal protection by extending and then taking away the right to marry would apply only to that state.

Pennsylvania does not recognize same-sex marriage but could be forced to if the court issues a broad ruling.

Leaders of the Delta Foundation say it's time for the Supreme Court to address the issue in a meaningful and decisive way. The group is a leading advocacy group for lesbian, gay, bisexual and transgender people in Western Pennsylvania.

"I'll be disappointed if they don't. This is really a time for the court to step up and do what it needs to do to get the job done. Hearts and minds are changing all over the country," said Gary Van Horn of Shadyside, president of the foundation's board of directors.

"The idea that two loving people want to love each other and care for each other for the rest of their lives is not a bad thing," he said. "This comes down to treating everybody equally."

Only the broadest of rulings would change things in Pennsylvania, at least in the near future. The state's House and Senate are controlled by Republicans, including many strong social conservatives who oppose same-sex marriage, civil unions and even anti-discrimination clauses that include gays and lesbians in protected classes.

"In Pennsylvania, we're a long way from any state law" legalizing same-sex marriage, Mr. Van Horn said. "The Legislature continues to believe we should continue to discriminate based on people's sexual orientation, which is very, very sad."

In Washington, legal scholars expect the Supreme Court to consider both constitutional interpretation and readiness for social change in a country where the public increasingly supports the right to same-sex marriage at the same time state legislatures are moving to ban such unions.

Attorneys for Proposition 8 supporters center their arguments around gay couples' inability to have children. In court briefs, they have said that marriage is intended to regulate childbearing relationships and to increase the likelihood that children will be raised in stable families by biological parents.

Allowing gay people to marry would denigrate the importance of the designation and weaken the social norms that encourage mothers and fathers to marry, the attorneys argued.

"Reserving the name 'marriage' to committed opposite-sex couples is designed, now as always, to provide special recognition, encouragement and support to those relationships most likely to further society's vital interests in responsible pro-creation and child rearing," reads one brief.

Attorneys for the two gay couples at the heart of today's case say marriage is a fundamental right and California has not denied it to other couples incapable of reproducing, such as the infertile, the elderly or even the incarcerated.

Rather, the attorneys wrote in their brief, "Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to be called a marriage."

Allowing gays and lesbians to marry does not diminish the value or status of traditional marriage, while withholding it deprives them of dignity and labels their families as second-rate, the lawyers wrote.

"That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America," they wrote.

Courtroom observers will have their eyes on Justice Anthony M. Kennedy, a swing voter on the court and the author of the two most significant gay rights decisions in U.S. history: one that gave gays and lesbians protection from discrimination and another that struck down a Texas law criminalizing sodomy.

Meanwhile, advocacy groups on both sides of the issue are staging rallies in Washington and across the country.

Marriage Equality USA is among them. Participants are hoping for a court ruling that will extend marriage rights to same-sex couples nationwide.

"Decades of tireless activism have led up to this very moment," said Jane Wishon of Los Angeles, a member of the group's board of directors. "Proposition 8 divided California into marriage haves and have-nots. The justices now have the opportunity to right this wrong."

Opponents of same-sex unions also are converging on Washington for a March for Marriage that will take them through the National Mall to the Supreme Court. Among them are 30 students from Franciscan University in Steubenville, Ohio.

"Marriage and family are the foundations of society," said Amanda Brennan, an accounting and theology major who is president of the student club Love Revealed. "If we don't fight for marriage as between a man and a woman, all of society crumbles."

Today's case, Hollingsworth vs. Perry, was brought by two California couples -- Kristin Perry and Sandra Stier, and Jeffrey Zarrillo and Paul Katami -- who challenged Proposition 8 after they were denied marriage licenses. Judge Vaughn Walker ruled in their favor. Dennis Hollingsworth and other Proposition 8 supporters appealed when state officials refused to.

On Wednesday, the court will hear arguments in United States v. Windsor, which stems from a claim by Edith Windsor of New York, who sued after the federal government assessed $363,000 in estate taxes after her wife died. If she had been in a traditional, federally recognized marriage, she would have been exempt from the tax.

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Bureau Chief Tracie Mauriello:, 1-703-996-9292 or on Twitter @pgPoliTweets.


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