The justices read the election returns, or so goes the legal proverb about the Supreme Court. In this case they might have also looked at the Election Day national exit poll which showed that a plurality (49 percent to 46 percent) of voters favored gay marriage. Maine, Washington, and Maryland became the first states where voters legalized gay marriage themselves.
Friday, the Supreme Court decided to hear two cases on gay marriage. The first case comes from Ninth U.S. Circuit Court of appeals sitting in San Francisco. This case concerns the constitutionality of Proposition 8, a voter initiative in California that banned gay marriage. The other case is from the Second U.S. Court of Appeals in New York City. This case focuses on the constitutionality of the Defense of Marriage Act, known as DOMA, which became federal law in 1995.
The opponents of Prop 8 believe the law is unconstitutional because the ban treats gay couples unfairly, which is a violation of the Equal Protection clause in the 14th Amendment to the Constitution. The Equal Protection clause states, "Nor shall any state… deny to any person within its jurisdiction the equal protection of the laws." The defenders of Prop 8 believe that the federal government doesn't have the constitutional power to interfere with the state ban because the Constitution does not give the feds the power to regulate marriage. Under the 10th Amendment, powers that the federal government doesn't have are reserved for the states.
Many observers believe that the Court will overrule the Defense of Marriage Act, the federal law that went into effect in 1996. DOMA expressly states that the United States government does not recognize the legality of gay marriage. In the U.S. Second Circuit Court of Appeals, the plaintiff Edith Windsor, a widow legally married to another woman argues that DOMA violates the Equal Protection Clause of the 14th Amendment because the Internal Revenue Service sanctions more favorable tax rules for heterosexual couples than it does for same sex couples. The Justice Department under President Obama feels DOMA is unconstitutional and has declined to defend the law. Former Attorney General John Ashcroft who represents the supporters of DOMA argues that the Supreme Court should be hesitant overruling a law approved by the other two branches of the United States government.
Even though both cases concern gay marriage, the issues for each differ. In the Prop 8 case, nullification of the California law would effectively nullify the state laws in 41 states that ban gay marriages. If the court nullifies DOMA, the ruling would only apply in the states that permit gay marriage and would give the gay married couples in those states the same kind of tax and healthcare benefits under federal law that heterosexual couples enjoy. It would be easier politically for the court to nullify a federal law that is relevant in a few states than it would be to end state laws in 41 states. But the nullification of both the state and federal statutes is the only way to ensure the freedom that all Americans should enjoy without the government poking into their personal lives.
The prospects for giving gay couples equal rights under the law are there. On the Supreme Court, there are obvious blocks of four liberal and four conservative justices. The ninth justice, Anthony Kennedy is the swing vote. Supporters of gay marriage note that in Lawrence v. Texas in 2003, Justice Kennedy ruled to nullify a state law which discriminated against gay couples. If Kennedy and the four liberal justices rule that DOMA is unconstitutional, the court will do what it did in the Lawrence case which is to give gay couples the same rights that heterosexual couples enjoy.
Support for gay marriage will only grow over time. Demography and history suggest that it is just a matter of time until gay Americans can shake off the stigma of second class citizenship.
Thomas Jefferson believed that political equality was an unstoppable force in a democracy. History supports Jefferson's theory. In 1896, most Americans accepted send class citizenship for blacks as the natural order of things. So did the U.S. Supreme Court which ruled that year that the agency that ran the trolley cars in New Orleans did not violate the equal protection clause when it arrested a black person, Homer Plessy for riding in a car reserved for whites. By 1954, the public turned against segregation and so did the Supreme Court in Brown et al v. the Topeka Kansas Board of Education. In Brown, the court ruled that Linda Brown, a black elementary school student, had the constitutional right to attend the all white school in her neighborhood. The Equal Protection clause in the 14th Amendment didn't change between 1896 and 1954 but the justices and public attitudes did.
The ruling in Brown paved the way to blacks to start the long journey from second to first class citizenship. It took blacks years for black Americans to enjoy their right to equal protection under the law. Hopefully, Edith Wilson will enjoy her day in the sun like Linda Brown. Conservatives and Republicans can slow the train of freedom but they can't stop it.
In their book, Millennial Makeover, Morley Winograd and Mike Haas noted that a large majority of adult Americans under 30 years of age were very supportive of gay marriage while seniors strongly opposed the idea. So it's just a matter of time until gay Americans shake the shackle of second class citizenship.