Gay Rights 2013: Why This Year is Going to Be Pivotal


When Barack Obama mentioned the Stonewall protests in his inaugural address last week, he did more than place gay rights in the same breath as the struggles for women’s equality (his mention of the Seneca Falls convention) and desegregation (his mention of the Selma marches). He also, knowingly or otherwise, foreshadowed the pivotal role the year 2013 will play in the history of that movement.

The main reason for this is that, starting in two months, pivotal gay rights cases are slated to be argued before the Supreme Court. These include:

1. In Hollingsworth v. Perry, the Supreme Court will need to determine the constitutionality of a decision by a California district court to overturn Proposition 8, a ballot measure in that state which banned gay marriage.

2. In United States v. Windsor, the Supreme Court will need to determine the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as “a legal union between one man and one woman” and spouse as “a person of the opposite sex who is a husband or a wife.”

From a constitutional standpoint, the various questions at play in each of these cases are pretty cut-and-dried. Although supporters of Proposition 8 claim that the California district court had no right overturning a referendum that had been supported by a majority of that state’s voters, Judge Vaughn Walker had been absolutely correct when he wrote that while “an initiative measure adopted by the voters deserves great respect,” it is essential that “the voters’ determinations must find at least some support in evidence,” instead of being primarily rooted in “conjecture, speculation and fears” or “the moral disapprobation of a group or class of citizens.” As Thomas Jefferson famously explained in his first inaugural address, “though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”

Similarly, the central issue involved in the DOMA case is the right to equal protection under the law. Although the Fifth Amendment guarantees that no citizen “be deprived of life, liberty, or property, without due process of law,” Section 3 of DOMA discriminates against consenting adults who enter homosexual relationships by denying them certain benefits to which they as taxpaying citizens would be otherwise entitled (such as Social Security survivor payments and the right to file joint federal tax returns).

If nothing else, DOMA is guilty of infringing on the proper sovereignty of local governments. While no majority, local or federal, has the authority to limit the rights of minorities (as explained above), constitutional precedent clearly establishes that matters such as marital law fall under the purview of the states. Yet, as Judge Barbara Jones pointed out in a New York district court’s ruling on DOMA, that law intrudes "upon the states' business of regulating domestic relations."

Even if constitutional correctness wasn’t enough to advance the gay rights cause in this year’s Supreme Court session, the ideological habits of the justices themselves are quite auspicious. Few doubt that the four liberal judges (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) will rule against Proposition 8 and Section 3 of DOMA. Less well known, however, is the fact that two of the conservative judges have similar inclinations against anti-homosexual measures. From Chief Justice John Roberts working behind the scenes as a pro bono advocate of gay rights during his years as an associate at a prominent Washington law firm to Judge Anthony Kennedy writing key decisions in similar cases that have appeared before the federal bench, there is every reason to believe that advocates of legal equality for homosexuals will be able to find a majority of judges to support their position.

This is very fortunate, since if there is one issue where liberals and conservatives should be able to unite, it is this one. In the words of Barry Goldwater, the 1964 Republican presidential candidate who is widely recognized as the founder of modern conservatism:

"The big thing is to make this country, along with every other country in the world with a few exceptions, quit discriminating against people just because they're gay. You don't have to agree with it, but they have a constitutional right to be gay.”