Brace Yourselves, SCOTUS Is About to Speak

If you’ve been following this blog for a while, you know how I feel about DOMA: it’s a bad policy, and it’s probably unconstitutional.

Well, the federal government stopped enforcing DOMA a few years ago, and this week, SCOTUS is going to rule on its constitutionality.  On top of that, they’re ALSO going to rule on the constitutionality of Prop 8, the law that was put to public vote in California that resulted in the banning of same-sex marriages within the state.  These two rulings will change the shape of the marriage equality debate in the United States, and I for one am waiting with my fingers crossed for some pro-equality decisions.

Today’s ruling is going to be about Prop 8, so let’s just do a little refresher on what’s going on here: the case is called Hollingsworth v Perry, and it was initiated by the American Foundation for Equal Rights on behalf of two same-sex couples in California.  They are arguing that Proposition 8 violates Due Process and the Equal Protection clause of the Fourteenth Amendment, rendering it unconstitutional.

Tomorrow, the Court will be ruling on DOMA, which is an equally big deal.  The case is United States v Windsor, with Windsor being represented by the American Civil Liberties Union and the United States being represented by a group called BLAG (which stands for the Bipartisan Legal Advocacy Group).  BLAG is led by House Republicans (so, not that bipartisan at all) and was put together to defend DOMA after the federal government ceased to do so in 2011.  Before the Court can even HEAR the case, they have to determine two things: 1) what is the standing of BLAG, given that it is not the federal government representing itself and 2) does the court even have the jurisdiction to hear the case, given that the federal government agrees with Windsor that the law is unconstitutional?  These are just some things to keep in mind if you’re following the case.

If you’re not all that familiar with DOMA, you can read my previous post about it here.  DOMA is problematic because it prevents legally married same-sex couples from accessing benefits at the federal level, including those related to military spouses, taxes, etc., and it prevents them from doing things like sponsoring their spouses for visas.  As with Hollingsworth v Perry, this case argues that DOMA violates the equal protection clause of the constitution.

If the court rules these laws unconstitutional, it will be a major win for advocates of marriage equality across the United States.  It will mean that all legally married couples in the US will be able to access the same rights and privileges at the federal level regardless of their gender composition.

But even more importantly, it potentially means that laws pertaining to sexual orientation will be elevated to the level of strict scrutiny, and for all my non-legal scholar readers, let me just clarify: strict scrutiny is the level at which we examine laws that pertain to race and to fundamental rights.  (We don’t evaluate gender at this level for whatever reason, and at present, we also don’t evaluate sexual orientation at this level-~-gender is evaluated at the level of intermediate scrutiny, and I believe sexual orientation is too, but don’t quote me on that).  This means that there is a greater threshold to prove compelling state interest in proving the legality of laws before the Court, and would make it easier to strike down laws that discriminate against the LGBTQ community in the future.

That said, for now, SCOTUS hasn’t released any decisions, and until they do, all we can do is watch, wait, and hope.

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~ by Randi Saunders on March 26, 2013.

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