"Windsor v. United States" lawsuit attempts to have federal
DOMA to be
ruled unconstitutional in the U.S. Supreme Court
Oral arguments scheduled.
Many Amicus Curiae briefs filed.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
2013-JAN-07: Supreme Court schedules oral arguments:
The court has scheduled a hearing of oral arguments in the United States v. Windsor case for 2013-MAR-27. A one hour time allotment has been scheduled. 1 Their final ruling is expected during late June.
2013-FEB-23: Federal administration files brief:
The administration filed a brief before the U.S. Supreme Court saying that the federal DOMA law:
"violates the fundamental constitutional guarantee of equal protection. ... The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples." 2
2013-FEB: Conservative Catholic group files brief:
On 2013-FEB-25. Catholic Answers Projects sent an emergency Email to its subscribers. They made a number of points:
- "This is our last chance to stop same-sex marriage."
- "We have arrived at a turning point in American history."
- "The United States Supreme Court has accepted two cases that may result in same-sex marriage being imposed everywhere in America." 3
Catholic Answers have filed an amicus curiae brief with SCOTUS outlining their concerns. They offered their financial supporters two free books in return for donations of $50.00 or more.
Their fear that SCOTUS might mandate marriage equality across all U.S. states appears to be doubtful. The court certainly did something similar to that in 1967 when they issued their ruling in Loving v. Virginia that guaranteed access to marriage by interracial couples. However, of the two cases involving SSM before SCOTUS:
- The California Prop 8 case before SCOTUS was focused very narrowly by the 9th U.S. Court of Appeals so that it only applies to those states where SSM was once available, and later was terminated by a citizen initiative. This has only happened twice in the history of the U.S.:
- The first was California where the state Supreme Court legalized SSM in 2008-MAY, and Prop. 8 subsequently cancelled marriage equality in 2008-NOV.
- The second was Maine almost exactly one year later where the legislature legalized SSM in 2009-MAY and a citizen initiative terminated that right in 2009-NOV without any same-sex couples having been able to marry. However, this case does not really count because voters in Maine repealed the 2009 referendum in a second referendum in 2012-NOV. SSMs are again available to loving, committed same-sex couples in Maine.
Thus, unless SCOTUS is prepared to take a great leap away from the the scope of the 9th Circuit Court of Appeals' ruling, the Supreme Court's decision will only affect California and will have zero impact on the other 49 states or on the District of Columbia. There has been some speculation that SCOTUS might widen the scope of the case to involve 9 or even all 50 states, but this seems unlikely
- The Defense of Marriage (DOMA) case centers on Section 3 of the Defense of Marriage Act. It requires the Federal Government to deny access by all legally married same-sex couples to federal benefits and protections that are automatically available to opposite-sex couples. If SCOTUS were to declare this section of DOMA unconstitutional -- as numerous lower federal courts already have -- the 41 states that currently deny same-sex couples the right to marry would not be affected. However, married same-sex couples in the District of Columbia or one of the 9 states that have legalized SSM would be given access to federal government programs.
Catholic Answers' main concern seems to be that as support for same-sex marriage -- as indicated in national polling data -- increases, and as SSM becomes available in more states, those who want to continue to exclude same-sex couples from marriage will begin to be treated as bigots in the same way as racists, sexists, xenophobes, etc. are today. This is a growing concern among religious and social conservatives. The historical record shows that it is a valid concern.
2013-FEB-27: Amicus Curiae brief filed by 278 companies, organizations, city governments, etc.
Alcoa, Amazon, Apple, Citigroup, Levi Strauss, Marriott International, Mars, Massachusetts Mutual Life Insurance Company, Microsoft, New York Life, Starbucks, Walt Disney, and about 200 other companies joined with city governments, law firms, Wall Street companies, and other groups to sign a legal brief opposing the constitutionality of DOMA. Its main author is Sabin Willett, a lawyer with Bingham McCutchen in Boston. The main points raised in the brief were the burdens imposed by DOMA on companies and organizations that offer benefits to same-sex couples. These problems become more complex and multiply when companies do business in more than one state.
The New York Times commented:
"The brief was one of many received by the court as it considered [two] landmark cases on gay rights and marriage. With a wide swath of leading companies signing on, it is the latest sign of the rapid shift toward acceptance of same-sex marriage in the corporate world as well as in the country. Recent polls indicate that a majority of Americans now agrees that same-sex marriage should be legal. Nine states plus the District of Columbia have legalized gay marriage and three more states recognize gay marriages performed elsewhere. ..." 4
The brief also referred to the desire of employers for fairness and equal treatment of employees. It said that DOMA:
"... forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees." 5
James Klein, president of the American Benefits Council in Washington, said:
"We feel it’s critical for the court to understand the burdens that this law imposes on both employers and employees. DOMA is not just a piece of social legislation, but it also has very practical costs for the business community and the people they employ."
Bernadette Harrigan, an assistant vice president in the law department of the Massachusetts Mutual Life Insurance Company, said:
"It’s 2013. The face of the nation is changing and to be competitive, to win in business today, you need to change with the demographics of the nation."
Candy maker "Mars" issued a statement saying:
"Mars’ decision to support the amicus brief was based on our belief that all married Mars associates should be treated equally under the law."
Johnson & Johnson issued a statement saying:
"We have joined the amicus brief because, as an employer, we believe that all lawfully married employees should be treated by our company in the same way." 4
Among the many dozens of comments posted to the New York Times article were the following three that caught our attention:
- Michael Clayton from Louisiana wrote:
"The next step -- and this one won't be a legislative act, but a societal/cultural one -- will be the falling away of labeling. When we quit labeling folks, grouping folks, herding folks into categories based on outward appearance, then, truly, we will have arrived.
Instead of gay marriage or same-sex marriage, how's about just plain old, garden-variety "marriage." Labeling in America has served as an invidious, insidious indicator. "Same-sex" marriage is right up there with "gang member" and "blue state" and "Reagan Republicans." Love is love.
We need to get past our Puritanical (heritage/legacy?) point-of-view regarding sex. Men sleep with men, men sleep with women, women sleep with women, women sleep with men, period. Sex is just skin rubbing up against skin, whether 'hetero' or 'homo', per se. It's made better when it's mutually consensual, and derived from affection. It will truly be 'morning in America' when we break the yoke of politics shackled around intimacy in our still great nation." 4
- "Atlant" from New Hampshire wrote:
"I'm fairly confident that the war has been won, but there are still many battles to be fought.
I say the war is won because, when you've got nearly a hundred high-ranking Republicans signing-on to support equal marriage (and therefore, gay rights in general), it's pretty clear that even 'THEY' understand that the most Americans no longer want to deny gays equal rights in any area.
But the reason I say there are still many battles to be fought is that decades of Republican exploitation of the issue of gay rights (for electoral gains) has left still-huge swaths of America conditioned to instinctively hate gays and be willing to deny them equal rights. All of this backlog of hate must be overcome and much as with racial prejudice, it will obviously take decades and, very likely, the dying-off of the haters and hate-mongers.
But the tide has clearly turned!"
- "Sarah" wrote:
"I'm enjoying referring to my 30 year life partner as 'my wife' these days. There is adherent understanding and respect. Rather than remaining in the shadows of society, we gain validation for our union and hopefully will gain equal protection under the law. Every year I file my taxes, I lose tens of thousands of dollars by not filing as a married couple. This is over 30 years. The time is now. This is a civil rights issue and I'm thrilled @ the progress that has been made, but let's go all the way!! The Feds need to recognize same sex marriage now."
Text of the Amicus briefs filed in the Windsor v. United States case:
GLAD, the Gay and Lesbian Advocates and Defenders, has prepared a page on their web site that contains links to all the briefs filed in support and opposition to DOMA in the DOMA case. See: http://www.glad.org/doma/documents/
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Supreme Court To Hear Gay Marriage Arguments For 2 Days In Late March," Huffington Post, 2013-JUN-07, at: http://www.huffingtonpost.com/
- Bernie Becker, "Obama administration brief: Defense of Marriage Act is unconstitutional, The Hill, 2013-FEB-23, at: http://thehill.com/
- Emergency email sent by Catholic Answers to their mailing list on 2013-FEB-25.
- Erik Eckholm, "Corporate call for change in gay marriage case," New York Times, 2013-FEB-27, at: http://www.nytimes.com/
- "Brief of 278 employers and organizations ...." American Benefits Council, http://www.americanbenefitscouncil.org/