Amendment One and Done?

Amendment One and Done?

- in Law and the Courts

In May, North Carolina voters easily approved an amendment banning same-sex marriage, but the fate of that amendment may now rest on decisions coming down from the nation’s highest court as early as next week.

On Friday, the justices of the U.S. Supreme Court will take a look at several same-sex marriage cases pending for review there and decide which, if any, it will hear this term. Though the cases arose in other states, each involves a provision that, like North Carolina’s amendment, defines and recognizes marriage as only between a man and a woman.  Depending upon which cases it takes and how broadly the justices rule, the Court may decide the constitutionality of that provision.

The Court’s review comes at a time when public support for marriage equality is growing, the North Carolina vote notwithstanding. In November, voters in Maine, Maryland and Washington approved same-sex marriage and, in Minnesota, rejected an amendment similar to that adopted here. Same-sex marriage is thus now legal in nine states and the District of Columbia.

Stuart Campbell, executive director of Equality NC — the group that led the charge against passage of Amendment One last spring — thinks that the time is right for the Supreme Court to jump into the fray, given public momentum in favor of marriage equality. “We’re all very excited about the possibilities these cases bring,” Campbell said.

Choosing among the ten

Eight of the cases before the Court concern the constitutionality of the 1996 federal Defense of Marriage Act, which calls for the government to recognize as valid only marriages entered into “between a man and a woman.”  The practical effect of that law has been to deny to same-sex couples who were otherwise legally married federal benefits typically afforded spouses, such as Social Security benefits, health insurance, and sponsorship visas.

It also has had other tangible consequences, like that suffered by 84-year-old Edie Windsor, a plaintiff in one of the cases before the court, who had to pay more than $350,000 in federal estate taxes when she inherited the home of her lifelong partner.  Had that partner been a man, Windsor would have had no estate tax obligation.

Another of the cases pending for review involves an Arizona’s version of DOMA, adopted there in 2009.

But perhaps the most well-known of the cases concerns California’s “Proposition 8,” a voter-approved ban on same-sex marriage which the 9th U.S. Circuit Court of Appeals later found to violate the U.S. Constitution. The case garnered national attention when legal lions David Boies and Ted Olson – often adversaries otherwise — joined forces to represent same-sex couples challenging that proposition. Their trial court performance and their clients’ compelling stories were later memorialized in the Broadway play  “8.”

Speculating on the odds

Most experts agree that the Court will take one or more of the DOMA cases, since the First and Second Circuit Courts of Appeal, and some federal district courts, have already held that DOMA is unconstitutional, finding that the government does not have a substantial or compelling interest in denying marriage benefits to same-sex couples who have been legally married.

Doing otherwise would give rise to confusion in the states, as DOMA would continue to be enforced in some states but not others.

Plus, because the DOMA cases only involve same-sex couples who are already legally married, the impact of any court decision would be limited. “Overturning DOMA would end disparate treatment [for these couples],” said Jeffrey Toobin in the New Yorker. “But even if the court were to strike down DOMA, that ruling would not extend the right to same-sex marriage to states where it does not already exist. For better or worse, it’s a limited case, with limited risks and benefits for both sides.”

In contrast, the Proposition 8 case is likely the easiest for the justices to reject. Doing so would mean that the Ninth Circuit decision overturning that ban would stand, and same-sex marriage would once again be legal in California.

But taking the case might mean that the court would address head-on the right to same-sex marriage. Toobin called the case high risk and high reward:

“At its core, the Prop 8 case is about whether there is a constitutional right to same-sex marriage—and whether, or when, the state can ever take that right away. The case involves only California, but the Court could use it to require every state to offer same-sex marriage to its citizens—a dramatic transformation of the law, since only six states [now nine] currently allow the practice. This is the high-risk high-reward case, one that might establish a right to same-sex marriage in the entire country, or, conversely, end with the Court declaring—in a ruling that could last a generation or more—that no such right exists anywhere.”

Where the justices would stand on that issue is not necessarily predictable.  Justice Anthony Kennedy, often described as the Court’s swing vote — surprisingly moved to the right in the health-care case. But he has history in the area, having written opinions supporting gay rights in two cases: Romer v. Evans, ending Colorado’s attempt to repeal local laws protecting gays against discrimination, and Lawrence v. Texas, tossing out state laws against sodomy.

What it means for N.C.

Here, Equality NC is taking a wait-and-see approach, Campbell said, keeping an eye on the cases before the Court, while continuing its efforts to address workplace discrimination and other issues of concern to the gay and lesbian community and considering what steps to take next — balancing a new Republican majority in the legislature with growing public support for marriage equality.

“Of course, we’ll have to see which cases the Court chooses to take up,” Campbell said. Not knowing which if any of the cases will be considered means not knowing what the impact would be in N.C. “But we’re very confident that the Supreme Court will decide the right way for equality,” he added, alluding to election victories for marriage equality in other states and growing public acceptance of same-sex marriage. “There are just so many reasons why that makes sense now.”