Gay marriage: US Supreme Court hears historic cases

The US is on the brink of a landmark moment for gay rights. This week the Supreme Court will hear argument on two key cases: one on the constitutionality of the 1996 defence of marriage act, the other seeking to overturn California’s Proposition 8, which banned same-sex couples from getting married.

Nationally, public opinion is rallying behind gay marriage as never before. A recent Ipsos/Reuters poll showed 63 per cent of Americans are in support. Another survey showed an overwhelming 83 per cent believe it will be made legal across the country within the next 10 years.

The issue has become something of a litmus test for Democrats: after finally making his support clear during the presidential election, Barack Obama has delivered a legal message of support to the court, known as an amicus brief. Government lawyers will not argue in support of the ban when the case is heard.

Even the Republican party, or at least some of it, is coming around to the idea. The leading senator Rob Portman wrote movingly about his change of heart after finding out his son was gay. His son Will has written just as movingly about his experience of coming out, in an article for the Yale Daily News.

When the personal becomes political

“Some people have criticised my dad for waiting two years after I came out to him before he endorsed marriage for gay couples”, he wrote. “Part of the reason for that is that it took time for him to think through the issue more deeply… but another factor was my reluctance to make my personal life public.”

As for the nine justices themselves, one of the most conservative members, Antonin Scalia, has repeatedly registered his moral objection to most aspects of homosexuality. But all eyes are on Anthony Kennedy, who often holds the swing vote on the bench.

Activists take heart from the fact that Kennedy has shown himself to be an advocate of gay rights in the past, like an opinion he delivered in 2003 when striking down a state law which prohibited gay sex.

“When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres”, he wrote.

And then there is the chief justice, John Roberts. A ruling in favour of same-sex marriage could become his equal rights legacy, the 21st century version of Brown v Board of Education, which abolished segregation and heralded a revolution in racial equality.

Equal protection

So what of the cases this week? The first, brought by several plaintiffs including 83-year-old Edith Windsor, seeks to overturn the defence of marriage act (DOMA) which defines marriage exclusively as the union of a man and a woman.

That means same-sex couples are entitled to none of the same federal benefits as heterosexuals. And it has landed Ms Windsor with a $366,000 bill in extra estate taxes after her wife passed away, because their marriage was not recognised by the federal government.

Most experts believe DOMA will be overturned. The Republicans’ lawyer Paul Clement, who served as solicitor general under the Bush administration, has put forward an argument which many see as less than convicing, talking about the “intrinsic connection between marriage and children”.

One of the original cases which the court must now consider argued that DOMA violates the 14th amendment, which entitles all citizesn to “equal protection of the laws”. Homosexuality is not explicitly recognised as one of the categories which must be treated equally, but the court could choose to create a new “special classification”.

Former attorney general Eric Holder wrote his opinion earlier this year, claiming the 14th amendment was designed to outlaw “sterotype-based thinking and animus”.

But proponents of states’ rights have been just as vociferous: states have traditionally had the power to decide issues of domestic and family law. The court could still decide in favour of the plaitiffs in the DOMA cases, without forcing every other state in the union to adhere to the same rules.

And the other case before the court, challenging California’s Proposition 8, is still more complex. Voters there have approved a ban on same-sex marriage by referendum, after thousands of couples had already been allowed to marry.

The tide of history

Kris Perry and Sandy Stier – who brought the challenge – were one of the couples who managed to marry during that brief legal window. They have been trying to get it officially recognised again ever since. “It’s a wierd road we’ve been on,” they told Talking Points Memo.

The court could decide to overturn Prop 8, but on more limited grounds which would not apply it to the entire country, if they decide that California was wrong to take away a right which it had already granted to thousands of people.

Or they could simply apply the logic of the 14th amendment. As Slate’s legal expert Emily Bazelon points out, making gay marriage “excitingly, but politically prematurely, the law of the land”.

People have been queueing outside the court since Saturday, hoping to land one of the few seats in the public gallery, to witness such a rare moment of history. One woman who is guaranteed a spot is Californian Jean Podrasky, who hopes to marry her partner Grace Fasano.

It turns out that Ms Podrasky is a cousin of Chief Justice John Roberts. And she is confident about the impending judgement, too: “I absolutely trust that he will go in a good direction.”

The tide of opinion, not to mention history, is behind her. The question now, though, is whether the court will choose to make this a life-changing moment for tens of thousands of people – and for generations to come.

President Lincoln, when he talked about transforming America’s opinion of slavery, wrote this: “He who moulds public sentiment goes deeper than he who enacts statute or pronounces decsiions”.

This week’s landmark cases could well prove just such a moment.

Felicity Spector writes about US politics for Channel 4 News