US Supreme Court wades into same-sex marriage debate

The United States Supreme Court has a history of playing a pivotal role in emotive cultural debates including, for example, abortion (Roe v Wade), racial segregation (Brown v Board of Education) and the death penalty (Roper v Simmons). Marriage equality will now join this list. In a much anticipated…

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A supporter of same-sex marriage holds a flag depicting two wedding bands outside Washington’s Supreme Court. EPA/Michael Reynolds

The United States Supreme Court has a history of playing a pivotal role in emotive cultural debates including, for example, abortion (Roe v Wade), racial segregation (Brown v Board of Education) and the death penalty (Roper v Simmons).

Marriage equality will now join this list. In a much anticipated move, the US Supreme Court announced on Friday that it will hear two cases relating to same-sex marriage. The case of Hollingsworth v Perry is from California and relates to whether Proposition 8 (a ballot amending the state constitution to define marriage as being between a man and a woman) is unconstitutional on the basis that it violates the Equal Protection clause of the United States Constitution.

The other case is Windsor v United States from New York, which will require the Supreme Court to consider whether the Defense of Marriage Act (DOMA) which was signed into law by President Bill Clinton, is unconstitutional. DOMA is a Federal Act that defines marriage as being between a man and a woman and on this basis denies same-sex married couples the same benefits and programs enjoyed by opposite-sex married under federal laws relating to tax, employment, health and so on.

The Supreme Court will hear arguments on these two cases in late March and is likely to deliver its judgments in late June 2013. The cases have many nuances and which way the court will rule is anyone’s guess. Indeed, the cases may not even be decided on the merits.

For example, the nine judges could determine both cases on narrow procedural grounds. This is because both cases involve questions of “standing”, that is, whether the parties are even entitled to argue the cases before the Supreme Court. Article III of the US Constitution limits the jurisdiction of the Supreme Court to cases involving parties who have suffered a direct loss or injury; an ideological objection is not sufficient to justify standing.

The Obama administration and the Californian government both consider that the provisions being challenged (DOMA and Proposition 8) are unconstitutional and have therefore declined to defend them. In light of this, the Republican-controlled House of Representatives has decided to step in and defend DOMA, and a group called ProtectMarriage is seeking to defend Proposition 8.

The Supreme Court has expressly requested the parties to address the Court on the question of standing. A finding that one or more parties lack the standing to argue these cases would end the appeals. Were this to occur, the lower court decisions would stand, which in both cases were in favour of marriage equality i.e. that Proposition 8 in California and DOMA are both unconstitutional. Such a decision would deprive the parties of the definitive ruling from the highest court which would have national impact.

I am not so bold as to try and predict which way the Supreme Court might decide these two cases. But what I will say, is that the judgements will be keenly awaited by both advocates and opponents of marriage equality, and will have repercussions across the United States, where nine states allow same-sex couples to marry, leaving 41 states that do not, including 30 which have expressly amended their constitutions to ban same-sex marriage.

Thus, within America, the fact that nine judges of the Supreme Court will decide this hot-button issue has been greeted with a mixture of hope and fear.

Some are concerned that it is too early for the Supreme Court to find a ban on same-sex marriage unconstitutional. They look at the fact that when the Supreme Court found laws criminalising sodomy to be illegal there were only 13 states which still retained the offence of sodomy; when laws prohibiting inter-racial marriage were found to be unconstitutional only 16 states still banned such marriages; and when segregation in schools was struck down, only 17 states still had segregated schools. Thus, historically, the US Supreme Court reflects society’s values, rather than dictates what those values should be.

The view that the Supreme Court should not move too fast on social issues was recently endorsed by Justice Ruth Bader Ginsburg who observed that while the decision in Roe v Wade was the right one, it was too fast and may have contributed to the bitter debate surrounding abortion that continues in the United States to this day. This insight into Justice Ruth Bader Ginsburg’s thinking suggests that she might not be in favour of creating a landmark decision regarding marriage equality.

It would certainly be open to the court to find in favour of same-sex marriage in such a way that it allows California to retain marriage equality without invalidating the bans on same-sex marriage in other states. That is, the Court could find the amendment to the California Constitution to be invalid without making it mandatory for all states to legalise same-sex marriage. This course of action might be the most attractive to the Court – as it allows them to point the country in the right direction without risking the bitter division that followed Roe v Wade.

As well as having repercussions across the United States, the Supreme Court’s decision is also likely to have an impact around the world. Although the cases will be decided according to the US Constitution, the United States still has enormous global influence and what the US Supreme Court decides will have a bearing on how other countries view this issue.

Join the conversation

20 Comments sorted by

  1. Dania Ng

    Retired factory worker

    There is a risk that I will have my post removed and/or be banned from commenting here, as I have in other merely for possessing the temerity to pose uncomfortable questions and for resisting the mobbing and jamming activities I have been subjected to as a result of this. However, my conscience prompts me to continue, because what happens in this publication is just simply wrong. I would like to make two observations.
    My first observation is, why do we get just the one point of view - in the case…

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    1. Sammy Jankis

      logged in via Twitter

      In reply to Dania Ng

      [Judge Jones' ruling is one of the clearest I have read in a long time, it explains that homosexuals are not prevented from marrying, they simply have to follow the same laws as everyone else. "Like heterosexual persons, they may not marry members of the same sex".]

      A very poor argument. Presumably you agree that mixed race couples never faced discrimination prior to miscegenation, given that members of those relationships were free to marry people of the same race?

      [Importantly, the argument…

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    2. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Thank you Sammy for your comment. Please read the whole judgement before you take the trouble of commenting. You will see that Nevada recognises domestic partnerships and accords to homosexual couples the same civil rights which married couples hold. So your observations are out of context because the judgement is not principally about a 'right' to marry, but whether the premises upon which homosexual demands for special rights are warranted.
      I am curious, have you paused to consider why Gerber did not mention this judgement? It would be interesting to know what other people think of it.

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    3. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Sorry Sammy, I neglected to reply to your question/proposition regarding me being the first person to explain in what ways the SSM would harm marriage. The Jones judgement explains it in his ruling. I have provided my point of view on other threads on this website, for instance here:
      https://theconversation.edu.au/the-same-sex-marriage-implications-for-australia-from-the-us-election-and-abroad-10672
      However, there are thousands of succinct and much better articulated arguments than I could write which are easily accessible on the net. Here's one to start you off in your search if you are indeed interested in learning what the other side in this debate has to say on the issue. http://www.americanthinker.com/2012/05/gay_marriage_the_hidden_agenda.html Don't rely on websites such as the one we are on at the moment to provide a balanced view

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    4. Grendelus Malleolus

      Senior Nerd

      In reply to Dania Ng

      Dania - you state "Don't rely on websites such as the one we are on at the moment to provide a balanced view"

      Then you provide a link to American Thinker. Should we expect to find balance there?

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    5. Grendelus Malleolus

      Senior Nerd

      In reply to Dania Ng

      Dania - Why would you expect that the author of this piece would include in discussion (of just a few hundred words) the Nevada case when they are largely discussing the Supreme Court, DOMA and proposition 8?

      The Nevada case may in fact - as you suggest, be considered at some point, but in the Proposition 8 case this is unlikely as it will consider the constitutionality of the Californian legislation, and in the DOMA case, federal legislation.

      You seem to ask for a lot of unrelated detail from an author with a word limit.

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    6. Sue Ieraci

      Public hospital clinician

      In reply to Dania Ng

      Commenters such as Dania Ng cry for greater balance, but then, by disguising their own ideological views in some sort of legal/rational framework, fail to provide that balance.

      Many people in our society have strong views about the expression of sexuality - arising from their religion, family or culture - or all three. Each of us is free to live our lives to these values - extra-marital and same-sex sexual activity is by no means compulsory. Indeed, same-sex relationships still incur judgement…

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    7. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Grendelus Malleolus "Then you provide a link to American Thinker. Should we expect to find balance there?" The point is that it is a differing view, and I would say vastly more balanced that those presented here on this topical issue. The other point is that some of us read both sides of the argument. The final point is that this here publication is the site I cited, as I noted, funded (unlike the site I cited) at least partially by public funds. It is consistently representing one side, and consistently…

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    8. Sammy Jankis

      logged in via Twitter

      In reply to Dania Ng

      [ You will see that Nevada recognises domestic partnerships and accords to homosexual couples the same civil rights which married couples hold.]

      The good old 'separate but equal' position? Would you be alright with separate drinking fountains for people of colour? I mean, they get access to water don't they?

      [ ...regarding me being the first person to explain in what ways the SSM would harm marriage. The Jones judgement explains it in his ruling.]

      Surely, if the argument that SSM will…

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    9. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Sammy Jankis .
      "The good old 'separate but equal' position? Would you be alright with separate drinking fountains for people of colour? I mean, they get access to water don't they?"
      and
      "Surely, if the argument that SSM will harm 'traditional' marriages is solid, you could provide us with a clear and concise summary?"
      etc., etc.
      Your statements are self explanatory. If you can't be bothered to read the sources I have provided, or inform yourself, and you want individuals to 'summarise' their argument for you just as you please, you need to reconsider whether to give up, not I. So my shorty answer is: No, I will not do your work for you; no, I won't 'bite' in response to your demeaning and racist comments; no, I won't give up. And no, I won't give you any more of my time. Welcome to the spamming/jamming corps, your nonsensical and racist remarks fit remarkably well with what they stand for, Sammy.

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    10. Robin Bell

      Research Academic Public Health, at University of Newcastle

      In reply to Dania Ng

      Dania, while I do not share your position on this issue (I dont have a position), I have to agree with you about the lack of balance in these articles generally, and culture of bullying that seems to be accepted as the moral right of those who hold the politically correct popularist position on these emotive value laden issues.
      Your comment is well reasoned and points out inconsistencies and assumptions in the article. The question of whether traditional laws and definitions of marriage amount…

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    11. Grendelus Malleolus

      Senior Nerd

      In reply to Dania Ng

      Dania,

      "American Thinker is impartial"

      LOL

      It is privately owned - and thus is subject to the direct influence of the owners. It is partisan - and explicately so, representing a conservative social and political view.

      On their website they state: "American Thinker welcomes donations from our readers. Because we reserve the right to be partisan, we do not qualify for tax exempt nonprofit organization status. We made the decision early on that speaking our minds is more important than any tax benefit could be. Regrettably, your donation to American Thinker will not be tax deductible."

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    12. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Grendelus Malleolus states, 'Dania, "American Thinker is impartial" LOL...'
      Here's what I actually wrote: "So it is irrelevant whether the American Thinker is impartial..."
      I rest my case. It's just so sad that there are so many examples of this sort of unethical individuals trolling here.

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    13. Grendelus Malleolus

      Senior Nerd

      In reply to Dania Ng

      My apologies - my cut and paste should have included "it is irrelevant whether the American Thinker is impartial"

      but my point stands - you imply that it is by stating "though, have you seen the bios of the editors and contributors?" and yes, I have.

      In your original link you also implied that by going to American Thinker we would find balance.

      Not so, we find a different opinon but reading both does not equal balance since the article above discusses the Supreme Court and the constitutional…

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    14. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Grendelus Malleolus. No worries, we all make mistakes when copying and pasting. But I feel you're still misrepresenting me. I linked to the American Thinker website in response to Sammy Jankis' request to explain in what ways would SSM affect traditional marriage. The site was chosen at random from my resources, but I can provide others and indeed I have provided links to copious resources on this topic elsewhere. But we would digress too much if I begun repeating myself in this thread on a somewhat…

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    15. Dania Ng

      Retired factory worker

      In reply to Dania Ng

      Robin Bell "But in the abscence of a bill of rights, and only some vague religion based consitutional chatter as a guide, our High Court is far more maverick than the US Federal Courts" -- I couldn't put it better, Robin. I appreciate your comment, thank you very much.

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    16. Sammy Jankis

      logged in via Twitter

      In reply to Dania Ng

      [ If you can't be bothered to read the sources I have provided, or inform yourself, and you want individuals to 'summarise' their argument for you just as you please, you need to reconsider whether to give up, not I.]

      Stop being lazy. Just tell me why you think SSM will damage existing heterosexual marriages.

      [ I won't 'bite' in response to your demeaning and racist comments]

      Which of my comments were racist?

      Seriously, you'll have to do better than your American Thinker article…

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  3. Stephen Tanner

    traveller

    "It's just so sad that there are so many examples of this sort of unethical individuals trolling here. "

    I'm not sure that this is true but if it is, quid pro quo Dania

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  4. Mark Amey

    logged in via Facebook

    Thank you Dr Gerber for an interesting essay on the legalities of marriage equality in the US. I look forward to June next year, but, imagine that the status quo shall remain for same sex couple is America. As you've pointed out, the US Supreme Court is usually a long way behind the states, and most of the states seem to be a long way behind society!

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