Q: I was talking with friends about the U.S. Supreme Court hearings about Proposition 8 in California and the Defense of Marriage Act, and some of us were really encouraged by the news reports. Are we being overly optimistic?
A: In March, with arguments in Hollingsworth v. Perry concerning Proposition 8 in California and United States v. Windsor concerning the so-called Defense of Marriage Act (DOMA), we witnessed two historic days in the U.S. Supreme Court. Proposition 8 revoked the freedom to marry for same-sex couples in California. The Defense of Marriage Act (DOMA) bars the federal government from recognizing the marriages of same-sex couples. I attended the March hearings, and I’m happy to say I felt encouraged as well!
Several moments made me smile. During arguments in Perry, the lawyer arguing in support of Prop 8 conceded that the government almost never has a legitimate reason for discriminating based on sexual orientation — a concession that echoes what we and other advocates for equality have been saying for years. In another exchange, Justice Anthony Kennedy stated his concern for the nearly 40,000 children living in California with parents who are same-sex couples and referred to the “immediate legal injury” they are suffering. Finally, the lawyer defending Prop 8 tried to argue that only different-sex couples could procreate together – an argument made by many anti-gay groups around the country – and was refuted several times. Justice Elena Kagan said that it did not explain why same-sex couples should be excluded from the institution. Further, Kagan asked about marriage between different-sex couples who are both over 55, and Justice Ruth Bader Ginsburg referred to an earlier Supreme Court case that held that even those locked up in prison with no possibility of procreation have the right to marry.
During arguments in Windsor, Justice Kennedy again expressed concern about the rights of children of same-sex couples. When the other side argued that the goal of DOMA was to protect states and allow them to experiment, Kennedy said he was troubled by the fact that DOMA only “helps” the states that do not want to respect marriages entered into by lesbians and gay men. Justice Sonia Sotomayor questioned what right the federal government had to create categories of marriage. In one of the most positive exchanges, Justice Ginsburg noted the harms imposed by DOMA. She discussed how federal marriage benefits are pervasive and “touch every aspect of life,” and said DOMA diminishes what numerous states have said is a marriage as “sort of skim-milk marriage.”
It was exactly 10 years ago that the Supreme Court overturned all remaining U.S. sodomy laws in Lambda Legal’s landmark case Lawrence v. Texas. Since then, we’ve seen much legal progress and social change on marriage for same-sex couples. The Supreme Court hearings on Proposition 8 and DOMA continued that momentum. The decisions are expected in June, and I’m remaining hopeful.
If you feel you have been discriminated against based on your sexual orientation, gender identity or HIV status, please contact our Legal Help Desk http://www.lambdalegal.org/help.
Jon Davidson is legal director for Lambda Legal, the national organization that works to secure full civil rights for LGBT people.