The Ball is in Their Court

Ever since the passage and signing of the repeal of “Don’t Ask, Don’t Tell” the march towards LGBT equality has picked up in pace that would have been considered inconceivable just five years ago.  Aside from the setback in this year’s Maryland General Assembly where comprehensive non-discrimination protections for trans folks failed to advance again, the rainbow path recently has been lined with victories.

This is especially true in the progress towards marriage equality.  Following President Obama’s announced support for same-sex marriage last spring, the tide has swung in earnest towards the seemingly improbable goal that gay and lesbians in the U.S. will finally no longer be treated as second class citizens.

The apex of this momentum was reached on Election Night as voters in three states, including Maryland, chose marriage equality while a fourth beat back an attempted ban—developments that had never occurred before.

Most recently, March 26 and 27 became another landmark period in LGBT history as two cases contesting the manner gay and lesbian couples are treated with respect to marriage rights made it to the highest court in the land.  Oral arguments were heard by the nine justices of the U.S. Supreme Court that on the first day saw the challenge to California’s Prop 8. 

Several hundred marriage equality advocates braved the cold temperatures and assembled in front of the Court in a colorful, raucous rally.  Opponents were fewer in number but they attempted to drown out the pro-equality rally with a lot of noise, chanting their dwindling number of rational arguments against same-sex marriage.

While it is nearly impossible to predict what the Court will ultimately decide based on questioning during this phase, conventional wisdom imparted by legal experts indicate that the Court will either strike Prop 8 down or even more likely revert back to the lower court’s ruling in that the measure is unconstitutional in California only. 

In that case, gay and lesbian couples in that state will again be able to marry.  If that occurs, some 30 percent of all U.S. same-sex couples would then be living in states that legally allow such marriages with several more looming on the horizon. 

There will likely be no sweeping edict that would affect same-sex couples in the rest of the country.  In other words, the Court is not likely to say in general terms that gays and lesbians have the legal right to marry, which is what marriage equality advocates had hoped for.  The least likely scenario, however, is that the Court will uphold Prop 8.

The picture seemed brighter and somewhat clearer following arguments on the second day. The constitutionality of Section 3 of the Defense of Marriage Act or DOMA, which denies over 1,100 federal benefits to legally married same-sex couples, was being questioned.  At least five justices had key problems with DOMA’s purpose and constitutionality.   

The case had been brought to this point by Edie Windsor, 83, who had to pay $363,000 in federal estate taxes after her spouse, Thea Spyer, died. Because Windsor would have been eligible for an estate tax exemption had Spyer been a man, she argued that DOMA's Section 3 violates her equal protection rights under the Fifth Amendment.

Again, it is not certain if the Court will grant eligibility for the 1,100 federal benefits to same-sex couples that are legally married.  Should that happen, it would constitute a huge victory for those couples married in the nine states (including Maryland) plus D.C.  Social Security survivors’ benefits and tax breaks would be among the major benefits if Section 3 of DOMA was struck down.  And it could form a precedent for future litigation.

The U.S. Supreme Court has a well-deserved reputation for being plodding and incremental and often lagging behind the social attitudes of the general public.  Sweeping landmark cases are rare, and these two could (and should) have been among them. 

The punditry noted correctly that attitudes on “gay marriage” shifted dramatically since 2004 when Republicans used the issue as a wedge among Democratic voters.  Indeed, according to a recent NBC/Wall Street Journal Poll, support for marriage equality has increased in virtually every demographic, region and party affiliation except those from rural areas and those between the ages of 50 to 64.  Blue collar workers represent the largest increase in support.

African-Americans, long seen as a group that had not supported marriage equality, increased their support by 19 percent since 2009 alone.  Analysts credit Obama’s change in his position on the subject as a significant contributor to the shift.

Moreover, young adults who will be playing a larger role in elections and are overwhelmingly supportive, will be replacing the older generation as they leave us.  But even though folks over 65 do not favor same-sex marriage (37% - 54%), their support has increased substantially since 2004 (16% - 80%). 

The justices’ votes have already been tabulated, and their rulings will be announced in June.  As most of the LGBT community will be celebrating Pride that month, the announcement will be eagerly anticipated.  

The justices would be wise to consider the trends in public acceptance because if the rulings do not unequivocally confer the same legal rights, benefits and responsibilities for all Americans, you can be sure the younger people will be back again knocking on the Supreme Court’s door.  For now, the ball’s in their court.