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Monday, June 24, 2013

Preparing for the Supreme Court’s Decisions on Prop 8 and DOMA

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution?
~ Justice Antonin Scalia (This quote is taken from his minority dissent to Lawrence v. Texas when the court struck down sodomy laws)

First, America needs a civics lesson
Contrary to the National Organization for Marriage’s wishes and all others who were disappointed when California’s Proposition 8 was struck down, and feel abused, the people DO NOT get to decide what’s constitutional and what’s not. Fortunately, we live in a constitutional republic, not a pure democracy.  For in a pure democracy, if 51% of the people want to cut off the heads of the other 49%, for whatever reason, it would happen.  Our Constitution forbids majority coercion of the minority and in fact was created, in no small part, to protect the rights of the minority. So if, say, California passes a proposition that provides that “only marriage between a man and a woman is valid or recognized in California,” the fact that the majority of voters voted yes does not mean it passes constitutional muster.  The same holds true for DOMA. That’s why, for those who are opposed to marriage equality, DOMA is not enough and only a Constitutional amendment will do.

Ironically, if we were to let the people decide, as NOM would have it, the tide has turned and the majority of Californians and Americans are now in favor of same-sex marriage.  Given their favorable attitude toward LGBTs, when the Millennial generation assumes power, this will be a long forgotten era of American history.  Just as today when young people are told of Jim Crow and the struggle for Civil Rights, and they are mystified as how this could ever have been, so too will generations from now find it hard to believe that gay people couldn’t get married.

How DOMA and Prop 9 control the lives of LGBTs up to now
The federal Defense of Marriage Act effectively does two things. First, it defines marriage for federal purposes as between one man and one woman as husband and wife; and “spouse” refers only to a person of the opposite sex who is either husband or wife.  Second, it allows states the right to decline to recognize same-sex marriages that are legal in other states.

The federal General Accounting Office identified “1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor”. This shuts out LGBTs from all federal benefits accorded to opposite-sex couples, including income tax breaks, Social Security survivor’s benefits, and health care. The GAO upgraded the number of benefits to 1,139 in 2003.

In California, Proposition 8 is a constitutional amendment, passed in 2008, which said marriage defined as “only between a man and a woman is valid or recognized in California.” It overturned the California Supreme Court’s ruling that banning same-sex marriage is unconstitutional. There was a window from June 16 to November 5, 2009 when same-sex marriage was legal and these marriages continue to be legal and likely will not be affected by SCOTUS’s ruling.

Possible Supreme Court outcomes
Most court watchers count the possible outcomes as four or five, reducing the likely outcomes to three. They range in scope from total victory for marriage equality across the board, to the status quo remaining in place. We will look at each outcome from best to worst, at least in the eyes of supporters of same-sex marriage.

DOMA and Proposition 8 are both struck down
Marriage would become the legal right of every couple, regardless of sexual orientation. Although this is the least likely outcome, it is possible. It is, of course, the most desirable outcome for those of us working for marriage equality. The reality that no couple in America could be denied the full dignity and rights presently accorded only to opposite-sex couples would mean that LGBTs are no longer second-class citizens.
A narrow interpretation would restore same-sex marriage rights to California and confer federal marriage benefits to all legally married same-sex couples throughout America. It would not affect marriage bans in other states; they would remain intact.

DOMA struck down, but Prop 8 upheld
Legally married same-sex couples in California and elsewhere will begin receiving the 1,139 federal marriage benefits. However, same-sex marriage will not be legal in California as well as the other states with similar bans. Those Californians legally married in 2009 will most likely not have their marriages made null and void.

Prop 8 struck down, but DOMA upheld
With the demise of Prop 8, marriage equality will be reinstated in California, and may overturn similar bans in place in other states. However, legally married same-sex couples will be denied all federal rights and benefits related to marriage. Second-class citizenship will continue.

We may know the outcomes as soon as tomorrow.  When the decisions are made public, I will post a column on where we go from here.

(This post was adapted from my book, Marriage Equality: Why same-sex marriage is good for the church and nation found here:

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