Have you heard? The Supreme Court is finally reviewing the gay marriage issue that this country's been waiting literally decades to resolve. Tuesday, the justices heard oral arguments and asked key questions on Hollingsworth vs. Perry, the case about California's Proposition 8. On Wednesday, it's time for United States vs. Windsor, the decisive case in determining whether the federal Defense of Marriage Act (DOMA) is constitutional or not. Political stars like Nancy Pelosi and Tammy Baldwin, the nation's only gay senator, plan to attend. So do a lot of other people. Corporations, non-profits, and all their friends have weighed in with over 300 amicus briefs having been filed. It's a big deal, and compounded all the more by the will-they-or-won't-they hedge from Day One on same-sex marriage at the Court. But if you haven't been following this case for the past four years, or if the last 24 hours have been a little overwhelming with all the legalese, don't worry. We've got you covered.
Edith Windsor is a New York woman in her eighties who married Thea Speyer, her same-sex partner of 40 years, in Canada six years ago. In 2009, Speyer passed away, leaving her entire estate to Windsor who was slapped with a $363,000 tax bill. If it hadn't been for DOMA, the 1996 law that defined marriage at the federal level as the union between a man and a woman, she wouldn't have had to pay any taxes. So she reached out to some gay and lesbian advocacy groups, found a lawyer willing to start the fight, won the support of the American Civil Liberties Union (ACLU), and filed suit in the U.S. District Court for the Southern District of New York in 2011.
It was destined to be a big case from the start. Windsor's was one of the cases that Attorney General Eric Holder cited in his February 23, 2011 statement announcing that the Obama administration could no longer defend portions of DOMA that it believed to be unconstitutional. This set the stage either for Congress to repeal the law or for the courts to overturn it. In June of 2012, the Southern District Court in New York ruled Section 3 of DOMA to be unconstitutional, pointing to the Fifth Amendment, and ordered for the federal government to give Windsor a tax refund. The Justice Department appealed a few days later, sending the case back to the Second Circuit Court of Appeals, which upheld the lower court's ruling in October. The DOJ appealed again, and on December 11, the Supreme Court granted certiorari, paving the way for Wednesday's hearing.
All this stirred the Bipartisan Legal Advisory Group (BLAG), a Republican-led group of congressmen and women who want to uphold the law in its current form, into action. The group disagreed with Obama administration which argued that sexual orientation was subject to heightened scrutiny, because gays and lesbians were discriminated against. BLAG later said that gays and lesbians are "one of the most influential, best-connected, and best-organized groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history." BLAG has filed briefs along the way and argued that Congress doesn't infringe upon states' rights, as other's have claimed. While they're not technically defending DOMA in court, they've filed an amicus brief ahead of Wednesday's arguments and have played a major role in the case so far.
As many have pointed out, the challenges against DOMA have as much to do with how the country makes laws as they do with gay rights. The tricky thing is that the federal government actually agrees with the plaintiff that the law is unconstitutional, so the Supreme Court's first order of business will be to figure out if it even has the jurisdiction to hear the case. It's also unclear exactly what role, if any, BLAG should play in the case. As a result of the weird web of connections between the three parties, the Court appointed Harvard Law Professor Vicki Jackson as a friend of the Court to argue these two points. If everything checks out, the Court will proceed.
This is when things get really fun. The crux of the case rests on whether the federal government overstepped its authority when passing DOMA, but the more fundamental arguments regarding gay rights will play a key role. Windor's lawyers, like the Obama administration, maintain that the law violates the Constitution's equal protection clause. "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," writes Solicitor General Donald B. Verrilli. These benefits include not only tax breaks like Windsor missed out on but also immigration and medical benefits.
The other side of the argument represents a mix of tradition and uncertainty. Lawyers for BLAG, however, argue that the law is necessary to encourage responsible procreation — in other words, to encourage couples to get married before having kids. Windsor's lawyers say that's "irrational, fantastical thinking." However, based on Tuesday's arguments in the case that will determine whether California's voters were within their power when they overturned a state Supreme Court ruling allowing gay marriage, the justices themselves are split. Justice Anthony Kennedy, who many legal experts think holds the deciding vote in the Prop. 8 case, wondered aloud Tuesday about the country having "five years of information to weigh against 2,000 years of history or more" in order to determine the impact of gay marriage on society. But some Court watchers insist that Tuesday's tepidness could have just been the justices teeing up to to strike down DOMA, which President Bill Clinton signed into law more than 16 years ago.
Many people are appropriately wondering how the Court is going to reconcile the DOMA case with the Prop. 8 case. It's not going to be easy. The New York Times's Adam Liptak suggests that the justices in Tuesday's questioning may have left itself "with an all-or-nothing choice on the merits" of Prop. 8, hinting at a ruling that would be much broader and apply to the whole country. (Rulings on both cases are expected at the end of the Court's term in June.) Then again, as Justice Kennedy's statements suggest, there's been a fair amount of hesitation over whether or not now is the right time to make the final call on gay marriage. It's possible that they could go after a very narrow in one or both cases. Consensus seems to suggest that they might just strike down DOMA and wait for the Prop. 8 issue.
And striking down DOMA would immediately trigger benefits in the ten states that currently have legalized same-sex unions: Connecticut, Iowa, Maine, Maryland, Massachusetts New Hampshire, New York, Washington, Vermont, and the District of Columbia. If the justices uphold it, well, nothing changes. Or Edith Windsor could just get her money back in Option No. 3, if the Court deems itself "powerless to decide."
So the bad news is that the fight for gay marriage still faces a pretty uncertain future — at least until June, and maybe in two pieces when that decision day finally rolls along. The good news is that the wait won't be much longer. So hunker down, bookmark the SCOTUS blog for a little after 10 a.m. Eastern, follow these people on Twitter coming out of the courtroom, and enjoy the show. We'll be right here to make sense of it all for you.