Marriage Equality Discussed in the Court, On the Web









By Amanda Krupman, Communications Coordinator

The U.S. Supreme Court heard oral arguments today in its much anticipated review of two cases challenging marriage bans for same-sex couples: Hollingsworth v. Perry, which concerns the voter-initiated state constitutional ban on same-sex marriages known as Prop 8, and U.S. v Windsor, which challenges the constitutionality of the Defense of Marriage Act (DOMA), a reactionary piece of congressional legislation signed into law nearly twenty years ago by then-president Bill Clinton.

Today the Justices heard Prop 8 arguments: By noon, spectators leaving the courthouse were tweeting their impressions, with most analysts predicting that the Court would let Prop 8 stand. All eyes were on Justice Kennedy, as he has been of a friend of LGBT civil rights in the past and is considered a swing vote on an otherwise evenly divided liberal or conservative panel.

On Wednesday, the court will hear arguments for and against DOMA, which was enacted in the wake of the Supreme Court of Hawaii’s 1993 declaration that denying marriage to same-sex couples was unconstitutional. DOMA basically decrees that the federal government will not extend same-sex couples the de facto protections and benefits given to opposite-sex couples.

Eight federal courts have already judged the main provision of DOMA unconstitutional on a variety of grounds. The case before the Supreme Court tomorrow takes up the issue of those proverbial certainties—death and taxes.

Edith Windsor was forced to pay nearly $400,000 in estate taxes after her partner of more than 40 years died. The injustice and impact of that gets to the heart of the marriage-equality movement’s argument against DOMA: over 1,000 separate federal benefits offered to heterosexual married couples are denied to those in same-sex partnerships, with life-altering effects. While making these rights available only to married couples is arguably discriminatory for any long-term, cohabitating couple who, for whatever reason, remain unmarried, the legal argument to dump DOMA has strengthened with the relatively rapid and steady trend of states legalizing same-sex marriage in the decades since DOMA was enacted. If same-sex couples are legally married in New York, Iowa, Oregon or any other state that allows them to marry, so the argument goes, federal law should not discriminate against those legally-recognized unions.

Whether you’re interested in looking at the hearings from legal, political, or cultural angles, the Internet and its wealth of treasures doth provide. Here is a starting round-up:

A Basic Overview

  • Access the transcripts of oral arguments in Hollingsworth v. Perry, the Prop 8 challenge. Or if you like your Scalia and Ginsberg in living color, access the audio.
  • See coverage of the Prop 8 arguments and follow live coverage of Wednesday’s hearings on the New York Times’ political blog The Lede.
  • And marriage isn’t everything: the Guardian was kind enough to create a handy interactive guide to knowing how laws, including those on adoption, employment, housing, and hospital visitation, affect LGBT people, state to state.

All the Wonk That's Fit to Print

  • Lambda Legal, a national LGBT legal defense organization best known for overturning sodomy laws in Lawrence v. Texas, provides context for the pathway from illegal gay sex to legal gay marriage.
  • Meanwhile, the ACLU says the marriage cases can be understood as a workers’ rights issue.
  • Read CUNY's own Professor Ruthann Robson's contribution to the SCOTUSblog. She said the Court should “attempt to emulate the [Ninth and First] circuit courts’ attempts at analytic rigor” and said that the Court should more clearly articulate constitutional standards.

Culture Wars

  • Let’s get (just this) one thing straight: not every person under the rainbow wants to get married, and some think the focus has done more harm than good for LGBT rights overall. Scot Nakagawa eloquently articulates for Changelab the complicated position of supporting civil rights but questioning the strategy to get there. And the bloggers at Queers Without Borders think the marriage equality movement serves the goals of more privileged members of the LGBT community while detracting attention and funding from more pressing priorities.
  • Amy Davidson of the New Yorker is sure that DOMA is doomed
  • And the National Review’s Rich Lowry offers his dissent, saying that it’s about timing: the gay rights movement has momentum on their side, but that “[b]y seeking a shortcut in the courts, supporters of gay marriage want to end debate through judicial fiat.”
  • Speaking of timing: the Atlantic Wire assesses political opportunism and locates the “sweet spot” for jumping on the political bandwagon.

Among all the crowded voices, let's wrap up with the words of Sophia Petrillo, who was way ahead of the pack.