Douglas: Supreme Court takes up gay marriage cases

Editor’s note: This analysis is by Anastasia Douglas, a Vermont attorney and a legislative and regulatory analyst at KSE Focus. KSE Focus tracks and reports on legislation and regulations in all 50 states for clients across the United States and Canada. It is wholly owned by KSE Partners, LLP of Montpelier. This article has been delivered also to Congressional Quarterly of Washington, D.C., for sale and distribution to its CQ State Track subscribers.

The U.S. Supreme Court is scheduled to hear two high-profile cases on March 26 and 27 related to same-sex marriage and the justices’ ruling later this year will have wide ranging implications for the 15 states that recognize gay marriage and civil unions and the millions of gay and lesbian Americans who seek the legal benefits and protections granted traditional couples. The stakes are high and the court’s decision could make same-sex marriage the law of the land or leave control of the issue with state lawmakers and voters. The decision, whichever way it goes, is expected to be an issue in the 2014 congressional campaign and the presidential election two years later.

The first case, Hollingsworth v. Perry, challenges California Proposition 8, a constitutional amendment put before voters that eliminated the right of same-sex couples to marry. The initiative passed with 52.3 percent of the vote in 2008. The case was brought by Kristin Perry and Sandra Stier after they were denied a marriage license in 2009 in Alameda County because they are a same-sex couple. The court will consider whether the Equal Protection Clause of the 14th Amendment prohibits California from defining marriage as the union of a man and a woman. Dennis Hollingsworth, a former Republican member of the California Senate who sponsored Proposition 8, stepped in to defend the initiative when then Attorney General, now Gov. Jerry Brown refused to do so.

The second case, United States v. Windsor, will consider whether Section 3 of the Defense of Marriage Act (DOMA), violates the Fifth Amendment’s guarantee of equal protection as applied to persons of the same sex who are legally married under the laws of their state. This section establishes the federal definition of marriage as “only a legal union between one man and one woman as husband and wife.” This case was brought after Edie Windsor’s partner, Thea Spyer, died in 2009 and left her estate to Windsor. Due to provisions of DOMA, Windsor did not qualify for the marital deduction under federal law and paid $363,053 in estate taxes. While this case was pending, U.S. Attorney General Eric Holder determined Section 3 was unconstitutional. The Bipartisan Legal Advisory Group of the U.S. House then intervened to defend the constitutionality of Section 3.

In both cases the lower courts found the laws to be unconstitutional.

The cases are being heard as there is new evidence that Americans are increasingly supportive of same-sex marriage. A recent Washington Post/ABC News poll shows that 58 percent of Americans now believe it should be legal for gay and lesbian couples to get married; 36 percent say it should be illegal. Public attitudes toward gay marriage are a mirror image of what they were a decade ago: in 2003, 37 percent favored gay unions, and 55 percent opposed them.

Same-sex marriage in the states

These cases illustrate that states remain divided on same-sex marriage despite the dramatic shift in public opinion. California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont, Washington and the District of Columbia filed briefs supporting Perry’ claim. The same states, with the addition of Rhode Island, filed a brief in support of Windsor.

Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Kansas, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia and Wisconsin filed briefs in support of Hollingsworth. The same states filed a brief in support of The Bipartisan Legal Advisory Group of the U.S. House with the exception of Colorado, Nebraska and South Dakota.

State legislatures have been debating same-sex marriage each year since Vermont passed the first civil union law in 2000, legislation that stopped short of marriage but extended the legal rights and protections of state law to gay and lesbian couples.

According to the National Conference of State Legislatures (NCSL) the following states now issue marriage licenses to same-sex couples: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia. Delaware, Hawaii, Illinois, New Jersey and Rhode Island allow for civil unions.

Same-sex marriage is being debated this year in Illinois, Minnesota and Rhode Island. A Colorado bill allowing for civil unions passed the legislature and was signed on March 21 by Democratic Gov. John Hickenlooper.

Illinois SB 10 is making its way through the legislative process and Democratic Gov. Patrick Quinn is expected to sign it. The Religious Freedom and Marriage Fairness Act passed the Illinois Senate 34-21 on Valentine’s Day and the House Executive Committee 6-5 on Feb. 26. Democrats hold a 71-47 majority in the House so passage is possible though not certain.

The marriage debate does not always skew along party lines, especially in states where religious leaders are lobbying the issue. For example a same-sex marriage bill is likely stalled in Rhode Island. The Ocean State is one of the most Democratic states in the nation and the only New England state not permitting gay and lesbian couples to marry. House Speaker Gordon Fox, D-Providence, the first openly gay speaker in the country, sponsored HB 5015 and it sailed through the House 51-19, but its chances in a Senate dominated by conservative Catholic Democrats are slim. Senate President Teresa Paiva-Weed, D-Jamestown, has opposed the bill. Independent Gov. Lincoln Chafee has supported it and has repeatedly discussed the economic disadvantage Rhode Island suffers by not allowing same-sex marriage like its neighboring states. A second bill that would put the question directly to voters is also in trouble in the Senate.

A Minnesota same-sex marriage bill with bipartisan support, SF 925, passed two Senate committees. Republican senators attempted to block it by questioning the cost to the state, however the committee reports were adopted and the bill is scheduled to advance. Sen. Branden Petersen, R-Andover, explained he broke with his party to co-sponsor the bill because “continuing to exclude certain people from marriage simply because of who they are is not in the best interest of the future of Minnesota.”

According to NCSL, states with constitutional provisions defining marriage as between a man and a woman are: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wisconsin.

States with statutory provisions defining marriage as between a man and a woman are: Delaware, Hawaii, Illinois, Indiana, Minnesota, Pennsylvania, West Virginia and Wyoming.

There are no DOMA bills advancing in the states this year. North Carolina voters approved a constitutional amendment that made marriage between one man and one woman the only domestic legal union recognized in the state in May 2012 and a similar Minnesota constitutional amendment question failed with 47.44 percent of the vote in November 2012.

The Supreme Court

The cases before the court have been well briefed prior to oral argument as more than 150 amicus briefs have been filed by federal, state and local governmental entities, business groups, multinational corporations, prominent political figures, church leaders and health professionals.

The Obama administration asked the court to find Section 3 of DOMA and Proposition 8 unconstitutional in its brief. Former President Bill Clinton warned when he signed DOMA that “enactment of this legislation should not … be understood to provide an excuse for discrimination.” Clinton recently argued in an op-ed for the Washington Post that he believes DOMA should be overturned because “the law itself is discriminatory” and for legally married same-sex couples Section 3 results in the denial of benefits of “more than a thousand federal statutes and programs available to other married couples.” A bipartisan group of former senators who voted for DOMA filed a brief in support of Windsor, as did 172 members of Congress, while 10 sitting U.S. senators who voted in favor of DOMA filed a brief in support of the bipartisan group.

Religious organizations are among the leading opponents of same-sex marriage. Other groups supporting Proposition 8 and DOMA include the Citizens United Foundation and the American Civil Rights Union. These organizations generally argue in favor of the sanctity of traditional marriage and oppose government intervention into the family. For example, the Catholic bishops’ brief for Hollingsworth opposes same-sex marriage arguing that it threatens procreation and the value of being raised by a mother and father.

A group of 278 employers including financial institutions, medical centers, health care providers, retailers, pharmaceutical companies, restaurants, cities and trade and professional organizations filed a brief in support of Windsor and a group of leading American businesses offered a brief supporting Perry. These companies, which include Apple Inc., Google Inc., Levi Strauss & Co and NIKE Inc., argue that Proposition 8 and similar laws impede business activity and place compliance burdens upon employers. The companies argue that when hiring they are forced to compete with states that provide equal access to marriage and they argue that DOMA requires them to consider the gender of their employees’ spouses when determining benefits.

State impact

The court could issue a narrow or sweeping ruling in both cases.

The justices could uphold Proposition 8 by finding that it does not violate the Equal Protection Clause, as argued in the Hollingsworth brief. This decision would only directly affect California. However, a Supreme Court ruling that validates a constitutional amendment prohibiting same-sex marriage would further support other existing state amendments and raise doubts as to the validity of state court rulings on same-sex marriage. Likewise, a ruling that upholds Section 3 of DOMA could have similar impacts.

Alternately, the court could invalidate Proposition 8 and Section 3 of DOMA. Finding marriage a fundamental right open to both opposite and same-sex couples under the 14th Amendment could mean that the states not currently doing so would be required to allow for same-sex marriage. Invalidating Section 3 of DOMA would “make it more difficult for federal, state, or local governments to justify other laws that single out gay individuals for differential treatment” according to a report prepared by the Congressional Research Service for Congress.

The court could also invalidate Proposition 8 by concluding as the 9th Circuit did, that California cannot give a right and then withdraw it without a legitimate reason for doing so. Although this decision would be limited in scope to California, it could impede states’ efforts to withdraw marriage rights already granted.

The court could also embrace the position argued by the United States brief in Hollingsworth. The Obama administration argued for an “eight state solution” dealing with states that recognize civil unions and domestic partners. If the court determines that states cannot extend all substantive rights and responsibilities of marriage to same-sex couples, without granting these couples the right to marry, California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island would be required to provide marriage licenses to same-sex couples. Colorado became the ninth state affected by this when Gov. Hickenlooper signed the civil union bill.

The court’s decision is not expected to be the final word and the same-sex marriage debate will likely continue in the states. Federal legislation has been debated but never advanced as the states have historically regulated marriage and Congress has not wanted to brave the political turmoil surrounding this divisive issue. The decision, which is expected in late June or July, will be a milestone in both states’ and civil rights history.