Marriage cases move nation towards equality


By Guest Blogger:  David Duchrow

The United States Supreme Court issued two landmark civil rights cases which, together, provide the strongest support to date for same-sex marriage.

These cases remind us that the civil rights movement does not travel a linear path.  Historically there have been notable steps forward and back, as well as many missteps.  The United States Supreme Court has issued decisions which, at times, have reflected popular opinion, and at other times it has held contrary to the will of “the people.”

Proponents of civil rights have pressed their cases based on compelling facts and moral imperatives, while those defending against progressive reform seem to utilize every procedural tool available to them (issues of standing, venue, and timeliness to name just a few) to defeat lawsuits against their clients.

This morning’s two marriage equality cases both follow and defy those historic trends.   In United States v. Windsor, the case involving the federal Defense of Marriage Act (“DOMA”), the Court issued a ruling aligned with what polls suggest is an overwhelming “will of the people,” which itself had dramatically changed over the course of the litigation.  Yet, in the case involving California’s Proposition 8, the high court avoided addressing the compelling trial court record that was carefully developed by those challenging Proposition 8.  Instead, the opinion in Hollingsworth v. Perry relies on a procedural maneuver to reinstate the trial court’s opinion invalidating Proposition 8.

In the DOMA case, Justice Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Justice Kennedy’s writing tracks language used in an amicus brief signed by 56 pro-civil rights organizations (including the California Employment Lawyers Association, on whose behalf I was honored to sign).  That brief emphasized the stigma for same-sex unmarried couples and their children.  DOMA “undermines” same-sex marriages in visible ways and “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  With the new decision, the federal government must now honor “dignity” states confer on same-sex couples if they choose to legalize gay marriage.

After the Court announced its DOMA decision, it issued its decision on Proposition 8.  California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already married under a state Supreme Court decision legalizing gay marriage.  A married lesbian couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative.  They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry.  Two lower courts ruled in their favor, and then-Governor Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Proposition 8 supporters led by a former state legislator to take up its defense.

Chief Justice Roberts joined with Justices Scalia, Ginsburg, Breyer and Kagan to rule that the initiative supporters did not have the standing to defend the ban in court.  The unusual coalition of traditionally liberal and conservative justices held that the Proposition 8 supporters could not prove they were directly injured by the lower court’s decision to overturn the ban and allow gay people to marry.

With the Proposition 8 decision, the Supreme Court refused to wade directly into the constitutional issues surrounding the California gay marriage case, side-stepping the pro-Proposition 8 argument on procedural grounds, meaning that a lower court’s ruling making same-sex marriage legal in California will stand and opening the door to marriage for gays and lesbians, without directly ruling on whether there is a constitutional right to same-sex marriage.

Thus, in DOMA the Supreme Court kept pace as public opinion shifted during the litigation, to the point where same-sex marriage is overwhelmingly supported now, even by those who opposed it initially when the litigation began.  And in the Proposition 8 case, procedure, not substance (alone) decided the outcome.  In any event, it is a proud, historic day for those who believe in equality and those who work to ensure civil rights for all.


Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

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