SUPREME SHOW­DOWN

What this month's his­toric gay mar­riage cases could mean for Ge­or­gia.

GA Voice - - Front Page - By LAURA DOU­GLAS-BROWN lbrown@the­gavoice.com

The U.S. Supreme Court hears ar­gu­ments in two cases this month that could de­cide the course of the fight for mar­riage equal­ity for a gen­er­a­tion.

The Supreme Court will hear a chal­lenge to Propo­si­tion 8, the bal­lot mea­sure that ended same-sex mar­riage in Cal­i­for­nia, on March 26.

“This case is about the fun­da­men­tal con­sti­tu­tional right of ev­ery Amer­i­can to marry the per­son they love,” said Adam Umhoefer, ex­ec­u­tive di­rec­tor of the Amer­i­can Foun­da­tion for Equal Rights, which rep­re­sents two gay cou­ples chal­leng­ing the law.

Both a fed­eral district court and a three­judge panel of the Ninth Cir­cuit Court of Ap­peals have al­ready found the mea­sure un­con­sti­tu­tional.

“A grow­ing ma­jor­ity of peo­ple across the na­tion see that Propo­si­tion 8 and laws like it are un­fair, un­law­ful, and con­trary to ba­sic Amer­i­can val­ues. It is time for the Supreme Court to rec­og­nize our Con­sti­tu­tion’s prom­ise of mar­riage equal­ity for all,” Umhoefer said when AFER filed its brief with the Supreme Court. “And when that day comes, we will be more Amer­i­can.”

The next day, the na­tion’s high­est court will hear a chal­lenge to the De­fense of Mar­riage Act, the 1996 law that de­nies fed­eral mar­riage rights to same-sex cou­ples.

Edith Wind­sor, now 83 years old, mar­ried her part­ner of more than four decades, Thea Spyer, in Canada in 2007. When Spyer died in 2009, Wind­sor was hit with an in­her­i­tance tax bill of more than $360,000, which she would not have owed if the government rec­og­nized her mar­riage. Wind­sor sued with help from Amer­i­can Civil Lib­er­ties Union.

“The four decades that Edie Wind­sor spent with her late spouse are a tes­ta­ment to the words ‘ in sick­ness and in health, till death do us part,’” said James Esseks, di­rec­tor of the ACLU LGBT Project, when the Supreme Court agreed to take the case. “Af­ter build­ing their lives to­gether and get­ting mar­ried, it is un­fair for the fed­eral government to treat them as though they were le­gal strangers.”

The Propo­si­tion 8 case has the big­gest po­ten­tial im­pact. AFER ar­gues that deny­ing same-sex cou­ples the right to marry vi­o­lates the U.S. Con­sti­tu­tion’s 14th amend­ment guar­an­tees of due process and equal pro­tec­tion, so a to­tal win could pave the way for same-sex mar­riage around the coun­try.

Big losses in ei­ther case, mean­while, could make it much more dif­fi­cult to win mar­riage equal­ity — es­pe­cially at the fed­eral level — un­til the U.S. Congress re­peals DOMA or passes pro-ac­tive mar­riage leg­is­la­tion, or un­til the make-up of the Supreme Court has changed enough that a new case might yield a dif­fer­ent de­ci­sion.

In short, a loss could cre­ate “a gen­er­a­tion of de­lay,” said Jon David­son, le­gal di­rec­tor for Lambda Le­gal, which has filed briefs sup­port­ing mar­riage equal­ity in both cases.

But the pos­si­ble out­comes are much more com­pli­cated than sim­ply if LGBT ad­vo­cates win, gay mar­riage will be le­gal around the coun­try, and if they don’t, it won’t.

In ad­di­tion to what the court de­cides in th­ese cases, how it reaches the de­ci­sion could also prove key to gay rights cases in the fu­ture.

“One of the most im­por­tant is­sues the court might de­cide, which is pos­si­ble with many out­comes in both cases, is what level of ju­di­cial scru­tiny should be ap­plied to laws based on sex­ual ori­en­ta­tion,” David­son said.

Those ar­gu­ing in fa­vor of same-sex cou­ples, as well as the Obama ad­min­is­tra­tion, have said the court should ap­ply “height­ened scru­tiny” in­stead of sim­ply “ra­tio­nal ba­sis.”

“Ra­tio­nal ba­sis” would pre­sume that laws based on sex­ual ori­en­ta­tion are con­sti­tu­tional, and places the bur­den on the party chal­leng­ing the law to show it does not ra­tio­nally fur­ther any le­git­i­mate government in­ter­est.

“Height­ened scru­tiny,” how­ever, would pre­sume such laws are un­con­sti­tu­tional and the bur­den would be on the government to show that they sub­stan­tially fur­ther an im­por­tant government ob­jec­tive.

“That’s a harder test to meet,” David­son said, and could have im­pli­ca­tions for other laws deal­ing with sex­ual ori­en­ta­tion, such as those re­lated to em­ploy­ment dis­crim­i­na­tion, adop­tion, and other is­sues.

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