By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project, 12/7/12
This is it – the Supreme Court marriage moment that the ACLU has been working towards for years. The Court announced today that it has granted review of the constitutionality of the Defense of Marriage Act in Edie Windsor’s case. The Court also took review of California’s Prop 8, so the full range of marriage issues will now be before the high court. These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.
The Windsor and Perry rulings, expected in June 2013, will be a watershed moment if our side wins either one.
Here’s why these cases are so important:
* Ending explicit federal discrimination. DOMA requires the federal government to discriminate against married same-sex couples by treating them as legal strangers for purposes of all federal statutes and programs. There are approximately 120,000 married same-sex couples in the U.S. today, and DOMA treats all of them as single in each of the 1,100+ places in the federal code where being married makes a difference – from eligibility for family medical leave, to social security survivor’s benefits, to access to health care for a spouse. It’s the last explicit federal declaration that gay people are inferior, which is reason enough to get rid of it.
* Heightened scrutiny in the balance. The Windsor ruling from the federal appeals court announced an important new protection for LGB people – “heightened scrutiny” by the courts. Under this standard, courts will presume that anti-gay discrimination by the government is unconstitutional and will require the government to have a good explanation for why it needs to treat us badly. Courts have usually applied a much less rigorous standard that often allows the government to discriminate against lesbians and gay men. While DOMA and Prop 8 should fail under any standard, if the Supreme Court adopts the heightened scrutiny standard, it would help eliminate anti-gay discrimination in many different contexts, from the workplace, to state parenting laws, to public schools across the country.
* Showing the country that discrimination in marriage is wrong. Both Windsor and Perry make profound contributions to the public’s understanding of the freedom to marry. Edie’s story resonates because her relationship with Thea exemplifies what many people think marriage is all about – making a commitment to another person and sticking with it through difficult times. When two people make the commitment that’s at the heart of marriage, it’s profoundly unfair for the government to treat them as though they’re not a family. The evidence presented at the Prop 8 trial helped the country see how baseless are the many anti-gay stereotypes that are at the core of our opponents’ arguments. And having prominent conservatives like Ted Olson champion this cause gets a big chunk of America to take another look. Once they do, many realize they don’t really have a problem with same-sex couples tying the knot.
The two cases both involve marriage for gay couples, but they actually present quite distinct issues. Edie Windsor is already married – she just wants to stop the federal government from treating her marriage different from everyone else’s marriages. The plaintiffs in the Prop 8 case, on the other hand, want to get married….
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