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Why the Supreme Court Will Not Rule for Gay Rights


Gay Rights
Many are hopeful for a favorable vote on gay rights, but experts continue to express doubt.

The Supreme Court is scheduled to hear two gay rights cases this month that could potentially have far reaching implications for New York, one of the few states that recognize gay marriage.

But experts at Brooklyn College expressed doubt whether the United States’ highest court would rule very progressively in either case: California’s Proposition 8 case and the federal Defense of Marriage Act (DOMA).

Prop 8 was a measure that California voters approved in the November 2008 election that retroactively rejected same-sex marriage, which had been legalized in in June of that year.

On June 16, 2008, the Supreme Court of California effectively authorized same-sex marriage licenses when it ruled homosexual couples were free to marry due to the “equal protection clause” guaranteed in the 14th amendment.

The 14th Amendment, Section 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws.

But only five months later Prop 8 appeared on the state’s voter ballot to amend California’s constitution to redefine marriage. The measure added a provision, that “only marriage between a man and a woman is valid or recognized in California.”

“Does a majority have a right to take away by vote a fundamental right?” asked Paisley Currah, the chair of the political science department at Brooklyn College.

“The majority has a right to legislate on policy and speed limits and housing rules,” he said.  “Do they have a right as a majority to deny a fundamental right?”

Anna Law, a professor of constitutional law and civil liberties at Brooklyn College, gave three possible outcomes for the Prop 8 case, Hollingsworth v. Perry, No. 12-144.

“What the Supreme Court could do,” Law said, “is do something very narrow and say, ‘ok well we’re going to make a ruling that just applies to California.’”

“They can do that by saying, ‘if a state makes same-sex marriage legal, they can’t then turn around and make it illegal.’”

Such a ruling would only effect California and the other states within the 9th Circuit Court of Appeals; the court where Prop 8 was heard before being appealed further to the Supreme Court.

Law said the “broadest” and most progressive ruling justices could deliver would be to say, “you can’t take away marriage because marriage is a fundamental right.”

“In which case, all the states would have to have gay marriage,” Law added.

“That’s the most progressive thing, and they wont do that,” said Currah.

The court’s most likely ruling, according to Law, is also the safest political decision: Let each state work it out for themselves.

Law said she expects the court to promulgate their stance that “regions of the country are so culturally different that we don’t want to impose one-size-fits-all with a national law, and we think the gay-rights issue should be left to each state individually to decide.’”

“That’s sort of the conservative approach – where they hand it back to the states,” Currah said.

“They’re kind of sidestepping,” she said of the Supreme Court. “Basically what they’re saying is, ‘whatever California did is ok, because the states are deciding.”

However, the Defense of Marriage Act, also scheduled to be heard before the Supreme Court, is explicitly a federal issue.

The question in United States v. Windsor, No. 12-307, is whether or not one part of DOMA, section three, violates Fifth Amendment equal protection rights for same-sex couples who are legally married in their states.

DOMA allows for states to choose whether or not they want to recognize the legal marriage of a same sex couple from another state.  Such freedom permits states that do not allow same-sex marriage to ignore federal marital rights to couples who were legally married outside of the state, as has occurred ever since Massachusetts legalized it in 2004.

“The Defense of Marriage Act is a federal, […] incursion into a traditional state issue,” said Currah.

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