The Supreme Court captured the attention of the Elon University community last month as it heard arguments about marital rights of LGBTQ-identified Americans, an issue that has elicited both activism and criticism from Elon students, faculty and alumni.
The court considered both the constitutionality of the Defense of Marriage Act (DOMA), a 1996 federal law that awards federal benefits according to the traditional definition of marriage, and Proposition 8 (Prop 8), a 2008 amendment to California’s state constitution that legally recognizes marriage as a union of one man and one woman.
During the week of March 25, when both sets of arguments were heard, many Elon students changed their Facebook profile picture to a pink equal sign to symbolize their support of marriage equality, and some engaged in debate both on and offline.
While the move toward legalizing same-sex marriage encourages some LGBTQ activists, others, including senior Lauren Clapp, an advocacy and education chair for Spectrum, Elon’s queer-straight alliance, point out that marriage equality is not the dominant issue for most LGBTQ people.
“I get really frustrated by organizations like the Human Rights Campaign who pose themselves as the leading LGBTQ advocacy organization, but are in many ways a single issue organization,” Clapp said. “They put such a strong emphasis on marriage equality, which really only benefits a select privileged few in the LGBTQ community.”
But Clinton Edmondson, an Elon alumnus and California resident said he believes Prop 8 and other efforts to ban same-sex marriage have encouraged activism for LGBTQ rights in the state.
“I think gay rights has been something that the California public has come to accept as necessary for a long time coming,” Edmondson said. “Prop 8 actually put the nails in that coffin. It's funny how that has worked for the gay rights movement in general. These lawmakers think they are preventing gay marriage and marriage inequality when in reality it's more of a ‘don't kick the hornets nest’ situation.”
Both DOMA and Prop 8 are contentious pieces of legislation that have generated complex debates about their constitutionality. The case of Prop 8, Hollingsworth v. Perry, supporters of the amendment argued that the federal court, as part of the United States’ federalist system of government, could not intervene and overturn a sovereign state’s decision.
“Under the Supremacy Clause, under Article Six of the Constitution, federal trumps state in most things,” said Scott Gaylord, associate professor of law at the Elon University School of Law. “Certain areas are reserved to the state, and traditionally, family law issues are one of those things.”
Those who argued against the constitutionality of Prop 8 said the measure violated the Equal Protection clause of the 14th Amendment. A 2012 ruling by the Ninth Circuit Court of Appeals and a 2010 ruling by the District Court of California both determined Prop 8 unconstitutional for that reason. However, in 2009, the Supreme Court of California found Prop 8 constitutional because it does not prevent same-sex couples from receiving benefits from domestic partnerships, even though they cannot call their partnership a marriage.
“If the court says, ‘No, the federal government can do it and there’s a broad liberty interest for individuals that trump any interest the states might have, then that would invalidate Proposition 8,” Gaylord said.
In Hollingsworth v. Perry, the case that challenged Prop 8, the Supreme Court may seem poised to decide the constitutionality of same-sex marriage once and for all, but the court’s ruling will likely affect only California. It may not affect other ballot propositions to invalidate same-sex marriage, such as North Carolina’s Amendment One. This is partly because same-sex marriage was legal in California before Prop 8 was passed, and the Ninth Circuit court made a decision regarding whether the right to marriage could be overturned in the state.
“The Ninth Circuit wrote a somewhat narrow opinion in that case,” Gaylord said. “You can invoke, possibly, Equal Protection and Due Process provisions, but if you interpret those only for the procedural developments in California itself, then the more limited that opinion is to California.”
While the Supreme Court could still rule broadly and say that marriage is constitutionally guaranteed right, some, like Edmondson, do not believe this is likely.
“As a gay man, it's disappointing to see because I think in the public conscience it's become overwhelmingly clear that marriage inequality is a problem that needs to be addressed,” Edmondson said. “DOMA and Prop 8 are just that. Someone else's mess. Part of the bigger mess that is our political system where cowardice and conformity has built such a barrier between common sense and lawmakers.”
Even if the people of California win the right to have same-sex marriage back, DOMA would still prevent those couples from getting any of the 1,138 federal benefits that are related to marital status, such as federal work benefits, tax deductions and pension benefits. In United States v. Windsor, the case that challenged DOMA, a widow in a same-sex marriage was not given estate tax exemptions afforded to heterosexual married couples, so she argued DOMA is discriminatory.
“Arguments are being made that DOMA survives even if states recognize same-sex marriage, because at least the part of DOMA that deals with the federal definition of marriage for federal purposes is irrelevant to state issues,” Gaylord said.
While the possible outcome of the case has garnered a lot of attention and legal scholarship, the justices may simply decide not to make a decision. Supreme Court cases must have the appropriate sides being represented in each case, a policy known as “standing.” In 2011, the Department of Justice said it would no longer defend DOMA in court, so the House of Representatives selected its own legal council to defend DOMA.
According to Gaylord, the court could say the executive branch needs to be the one defending DOMA because it is a federal law. If this is the case, then the court will make no decision on United States v. Windsor.
Similarly, with Prop 8, the California executive branch is not defending the ballot proposition. The proposition’s official proponent, ProtectMarriage.com, is arguing the case instead. Like with DOMA, the court may decide that they do not have standing in this case.
“If they lack standing, if they’re not proper parties before the court, then everything would be vacated back to the district court,” Gaylord said. “And the district court’s decision saying that these individuals have a right to marry would stand, but that’s a narrow holding with regards to California law.”
Even if the courts decide to overturn both DOMA and Prop 8, Clapp said she is worried that some people may interpret the rulings to mean LGBTQ people have achieved full equality.
“I think that federal marriage rights are certainly an important step, but when I can legally be fired or denied housing because of my sexual orientation or gender identity in more than half of the states in the US, it's clear to me that we still have a long way to go,” Clapp said.