Prop 8, DOMA, and the Key Supreme Court Battles Ahead for the Same-Sex Marriage and LGBT Rights


Nine years ago today, the Supreme Court handed down its decision in Lawrence v. Texas, overturning sodomy laws across the U.S., and reversing the court’s 1986 decision in Bowers v. Hardwick. The Lawrence case began when two men were arrested in Texas for allegedly engaging in a sexual act. It’s hard to comprehend that homosexuals were criminals in 14 states only ten years ago just for being themselves. Thankfully that changed at the hand of the Supreme Court. Today’s anniversary is not likely to get much fanfare, but let’s celebrate it by looking at potential cases for the Supreme Court to grant more victories to the gay rights movement.

First and foremost, California’s Proposition 8 could very likely be going to the Supreme Court next year. The law has twice been struck down as unconstitutional by a federal court, and was denied a motion for a second appeal. The denial meant the ambiguously named Alliance Defense Fund could ask the Supreme Court to hear the case, and they have announced their intent to do so. If this case is accepted, there are a few potential outcomes.

First, the gay rights movement could win the grand prize and have gay marriage bans overturned throughout the U.S. Given that the Ninth Circuit court’s decision was based on the fact that the Proposition violated the Equal Protection clause If the Supreme Court agreed with the Ninth Circuit ruling, it would be difficult not to expand that to all states.

However, for reasons beyond my legal understanding, but likely pertaining to judicial restraint, the Ninth Circuit stated in its decision that the ruling need not apply outside of California. This leads to the second outcome: the gay marriage ban is overturned in California, but not in other U.S. states. Such a decision would certainly be a victory for California and pave the way for other challenges in the future, but given the long cycle of the Supreme Court, it could be awhile before gay marriage bans get overturned everywhere.

There is, of course, a third, and most devastating potential outcome in which the Supreme Court overturns the Ninth Circuit ruling and says the ban is constitutional. This seems unfathomable to me personally, since I cannot agree more with the Ninth Circuit in that gay marriage bans are in violation of the 14thAmendment. But it is likely that the four liberal judges will agree with me and the Ninth Circuit, the four conservative judges will disagree, and as usual, the swing vote will come down to Anthony Kennedy. One good sign is that he wrote the majority opinion in the Lawrence case, but that decision centered on the premise of due process, and not the Equal Protection clause. It is hard to guess Kennedy’s views on whether or not gay rights are protected under the 14th Amendment, so it will undoubtedly be a very nerve-racking time in the LGBT community if the case gets heard.

Another potential game-changer would be an overturning of the Defense of Marriage Act. While there have been countless lawsuits over the years, there are four happening now that could change things. These are Gill v. OPM, Pedersen v. OPM, Massachusetts v. HHSand Windsor v. United States. All of these cases are challenges to Section 3 of DOMA, which basically means it’s being challenged under the 10th Amendment. (Challenges to Section 2, which would mean determining directly whether or not gay marriage is constitutional, have unfortunately failed in the past.) All four of these cases have been ruled in favor of the gay rights activists in federal district courts. Some have moved into oral arguments in the First District Court, and initial reports paint a promising picture for gay marriage. Judge Juan Torruella compared DOMA to banning interracial marriage (which was struck down by the Supreme Court in 1967 with Loving v. Virginia).

Hopefully it won’t be long before those in the LGBT community are finally granted their rights because of these cases. Until then, PolicyMic already has some ideas on what you can do in the meantime to support the community.