Courtside for Marriage

A SCOTUS ruling could help or hinder in 2013

By Richard J. Rosendall
Published on January 3, 2013, 6:56am | Comments

The fight to expand the definition of family to encompass the diversity of actual families continues in 2013. Legislators in Illinois, Minnesota and Rhode Island are preparing marriage-equality bills.

On another front, Immigration Equality's efforts paid off recently when the Congressional Hispanic Caucus, in a move praised by the White House, included protections for binational gay couples in its guidelines for comprehensive immigration reform. That effort has gained new traction as the GOP tries to mend its disastrous alienation of Hispanic voters.

The year's top billing in the struggle for gay families goes to the Supreme Court of the United States (SCOTUS), which in March will hear oral arguments in two marriage cases: Hollingsworth v. Perry (California Proposition 8), appealed from the Ninth Circuit; and United States v. Windsor, appealed from the Second Circuit, which knocks down the one-man-one-woman definition of marriage in Section 3 of the Defense of Marriage Act (DOMA).

The Ninth Circuit, instead of endorsing U.S. District Judge Vaughn Walker's sweeping 2010 decision that Prop. 8 was ''unconstitutional under both the Due Process and Equal Protection Clauses'' of the 14th Amendment, narrowed it to declare that rights previously granted cannot be taken away. SCOTUS could uphold this, which would not affect states that have not allowed gay marriage. Or it could sweep away all 31 state constitutional amendments barring gay marriage, and impose marriage equality nationwide. Or it could rule that there is no constitutional right for same-sex couples to marry.

This array of options is a bit scary with such a closely divided court. At the same time, a sign of our growing success is the fact that David Blankenhorn, an expert witness for Prop. 8's proponents in 2010, has changed his mind and now accepts gay marriage.

A key question raised by the high court in both cases concerns Article III standing — whether Prop. 8's proponents have the right to appeal Perry (state officials having declined), and whether House Republicans have the right to appeal Windsor (President Obama having refused to continue defending DOMA). If the appellants lack standing, the case is thrown out and the pro-gay trial court ruling stands.

I agree with marriage-equality advocates who favor upholding the Second Circuit on DOMA and either upholding the Ninth Circuit on Prop. 8 or denying standing. This gets federal recognition for gay marriages in states that allow them, without compelling other states. If the court imposes marriage equality on all the states now, the resulting backlash could keep dozens of state legislatures in obstructionist hands for a long time. Many liberal jurists warn against getting ahead of ourselves. A more modest ruling affirming states' rights would allow the political process more time to work. After another decade of rising public support for equality, a SCOTUS ruling granting equality nationwide would be less of a provocation.

This high-stakes court battle occurs against a broader backdrop. Despite the election, Republicans continue pursuing their alternate America in which plutocrats replace the middle class with a fend-for-yourselves feudalism; white heterosexual men claim a divine right to perpetual dominance; the bossiest form of Christian fundamentalism is the state religion; and know-nothingism cripples our ability to compete internationally in industries that depend on science and its application.

Endurance was a crucial virtue in carrying us this far. We must remain engaged and clear-eyed for the battles ahead, even as we represent our families in the public arena. Those committed to a more intolerant America have not laid down their weapons. As I finished writing this, I read that the Kansas Department of Children and Families has sued a sperm donor for child support because it doesn't recognize the relationship of the child's lesbian parents. Happy New Year.

Richard J. Rosendall is a writer and activist. He can be reached at rrosendall@starpower.net.


Call 202-638-6830 to advertise here in Marketplace