Later this month, the U.S. Supreme Court will decide whether the federal Defense of Marriage Act and California’s Proposition 8 deny equal rights to same-sex couples in two separate cases. The rulings are anticipated to be landmark decisions and would potentially impact the future of gay marriage in the United States.
Government professor and American politics scholar Christine Nemacheck spoke to the College of William and Mary Young Democrats and the Lambda Alliance about the two cases Thursday March 14. During her talk, she explained the judicial process and offered her predictions on how the court might make its decisions.
The first case, United States v. Windsor, will decide the constitutionality of DOMA, which was signed into law by President Bill Clinton in 1996. The law explicitly defines marriage as a relationship between a man and woman. Although some believe that legal recognition of a relationship is immaterial if the partners love each other, the red tape surrounding marriage can pose significant difficulties for unrecognized partners. Nemacheck noted that Edith Windsor, who was legally married to a woman under New York law, was subject to pay a federal inheritance tax on the money her wife left her.
“She was subject to pay [$363,000] by the federal government … because the federal government did not recognize her same-sex marriage,” Nemacheck said.
Proposition 8, a ballot measure passed by California to disallow gay marriage, is being challenged in the second case, Hollingsworth v. Perry. Plaintiffs argue that taking away a right from a minority group violates the Equal Protection Clause of the Fourteenth Amendment.
Whether the laws will be upheld or struck down largely depends on the type of scrutiny the court uses in its judicial review. The lowest level of scrutiny is called the rational basis test, which states that if a law discriminates against a group of people, it must be for some legitimate reason. Nemacheck used noise ordinances as an example of a law that could be tested using rational basis: Although it may affect some college students on the weekend, the law is in place to keep neighborhoods quiet at night.
“Nearly all cases using a rational basis test will uphold the laws they are testing,” Nemacheck said.
Courts can also employ heightened scrutiny and strict scrutiny tests. As the level of scrutiny rises, the reason for upholding the law must be more compelling.
“Once you get passed rational basis, the government must give what is called a compelling interest, something that is really important,” Nemacheck said. “There has to be a very important goal they are trying to meet with [a piece of legislation].”
Thus far, the lower courts have struck down Proposition 8 using rational basis and DOMA using both rational basis and heightened scrutiny. Nemacheck predicts the Supreme Court will use either of these tests in the cases.
Nemacheck drew attention to two older cases to predict how the court might rule on DOMA and Proposition 8. The first was the 1967 landmark case Loving v. Virginia in which the Supreme Court unanimously decided that laws barring interracial marriage were unconstitutional. In making the decision the Court used strict scrutiny.
The other, more recent case Nemacheck discussed was Romer v. Evans. In this case, the Court ruled 6-3 that a Colorado law preventing lawmakers from recognizing gay individuals as a protected group in matters such as equal employment and housing was unconstitutional. The Court used rational basis to make the ruling. Justice Anthony Kennedy wrote the majority opinion.
“What I think will happen is that Justice Kennedy will strike down DOMA and Proposition 8 based on his decisions in cases like Romer v. Evans,” Nemacheck said. “Kennedy, I also think, is particularly aware of being on the right side of history so to speak. I think his interpretation of the right side of history on this will lead to his support of same-sex marriage.”
Oral arguments for U.S. v. Windsor and Hollingsworth v. Perry will be heard March 26 and 27, respectively. However, Nemacheck said the Court most likely will not make its decisions for several weeks.
Although the National Democratic Party hasn’t officially adopted gay rights into its platform, the College’s Young Democrats have been active in supporting marriage equality. The group recently joined a group of other colleges’ Young Democrats that support gay rights, an effort started by the University of Pennsylvania Young Democrats.
“We as a club usually focus on campaigning, so we campaign for candidates that support gay rights,” Molly Michie ’14 said.
Many politicians, businesses and other public figures have sent briefs against DOMA and Proposition 8 to the Supreme Court. Lambda Legal was one of the organizations that filed a “friend of the court” brief, but Lambda Alliance Co-President Zeinah Zaki ’14 explained the College’s Lambda Alliance doesn’t focus on politics.
“Lambda is actually not very political. We co-sponsored the event to encourage students to go, but Lambda usually doesn’t do a lot of activism; we usually just direct students toward activism and political knowledge-gaining experiences,” Zaki said.