We’ve Got that “Loving” Feeling

Many conservative and progressive “court watchers” are expecting the Fall 2012 term to be as eventful and unpredictable as the June Session when Chief Justice John Roberts sided with the liberal justices to uphold The Affordable Care Act (Obamacare). This session, all bets are off, but most pundits expect the Chief Justice to return to the conservative fold and help decide 34 (plus) cases from affirmative action (Fisher v. the University of Texas), voting rights (Shelby County v. Holder, Nix v. Holder, and Texas v. Holder), civil liberties (Clapper v. Amnesty International) and a challenge to the Federal Defense of Marriage Act (DOMA) (Massachusetts v. U.S. Health & Human Services).

Earlier this year, the U.S. Courts of Appeals for both the First (Massachusetts) and Ninth (California) Circuits ruled that Congress and California acted unreasonably in making their respective judgments on their definition of marriage. Because the First Circuit in Massachusetts v. HHS held an act of Congress (the Defense of Marriage Act) unconstitutional, the Supreme Court is expected to review the First Circuit decision. The Court also could decide to review the Ninth Circuit’s decision in Hollingsworth v. Perry together with the First Circuit’s decision which challenges the constitutionality of Proposition 8 (enshrining a version of the Federal DOMA into the California constitution.) Thus, the stage is set for heated oral arguments and a ruling as significant for the LGBT community as Loving v. Virginia was to desegregation and the civil rights movement.  Loving v. Virginia was a 1967 landmark civil rights case in which the United States Supreme Court unanimously declared Virginia’s anti-miscegenation statute unconstitutional making it legal for interracial couples to marry in the United States.

The legalization of gay marriage, through overturning DOMA would put “equality” front and center as a human rights landmark decision. Today, six states and the District of Columbia allow same sex marriage. The United States Supreme Court has consistently ruled that marriage is one of the most fundamental rights of all Americans. There has been a quantum shift in public opinion on the issue of gay marriage. Most polls, such as Pew Research, show that 54% of Americans approve of gay marriage, 42% do not and the remainder offered no opinion. While not a legal argument, the Court could come down on the wrong side of history if it decides DOMA is constitutional.

Without specific “protection” extended by the Supreme Court, same-sex couples in the six states that allow gay marriage cannot participate as a married couple in Social Security, or reap the Federal tax benefits of filing jointly, or apply for numerous Federal benefits. Other states and the Federal government have created “institutionalized discrimination” through the enactment and enforcement of DOMA laws and constitutional amendments. As argued by the state of Massachusetts before the First Circuit Court, “The central question is what federal interest is served in singling out only same-sex marriages as invalid.” This is the question the Supreme Court must answer for our nation’s LBGT community.