At some point this week, perhaps even today, the Supreme Court of the United States (or SCOTUS for those fellow fans of the acronym) will have ruled on its two landmark cases on equal rights for same-sex couples in the USA.
The ruling on Proposition 8 – the state of California’s constitutional ban on equal marriage which was passed by referendum of the people – and the ruling on the Defence of Marriage Act – the bill passed by Congress that makes it illegal for the Federal Government to recognise any same-sex marriage, even those performed legally in the states that allow it – could have wide, far-reaching consequences for LGBT people in the United States of America, the world’s most powerful democracy. Many in the USA find it anti-democratic that unelected judges can have the final say on many issues, however, I believe that it is essential in protecting the rights of minorities that politics and running for election does not get in the way.
The Supreme Court is a body of nine justices that are the final court of appeal in the land, and are able to rule on whether pieces of legislation from the states and from the federal government are unconstitutional. Justices are appointed by the President at the time a seat becomes available (through the death or retirement of a previous justice) and, as such, are often politically motivated – although these appointments have to be agreed by the Senate, there are few examples of Presidential appointees being blocked. There are currently five justices that have been nominated by a Republican President and four that were nominated by a Democratic President. As such, the court seems more in favour towards a conservative approach, however Justice Kennedy is often seen as the ‘swing’ vote as he has been known to vote with more liberal judges. The hope of LGBT rights groups is that they can sway Justice Kennedy and perhaps Chief Justice Roberts to side with the more liberal justices in ruling in favour of same-sex rights. I would suggest reading the fascinating ScotusBlog for more detailed analysis.
Briefly, I want to explain the ways that SCOTUS could rule. Much of the below information has been taken from this fantastic article in the New York Times. On Proposition 8, there are a few possibilities. The most simple is that they uphold the ban, allowing all states to freely allow or deny same-sex marriages. There’s another option that means the supporters of the ban lacked legal standing to appeal to the court to make a decision, and most agree that this would mean same-sex marriage would start again in California. The final option is that the court strikes down Proposition 8. If they do so suggesting that same-sex marriage bans are unconstitutional, then all laws throughout the United States that ban same-sex marriage would fall – this would affect 36 states. If they strike it down saying that California should not be able to provide civil-unions (similar to our civil partnerships) without calling them marriage, then the seven states that currently offer civil-unions would be forced to offer full same-sex marriage. The last possibility, and perhaps the most unsatisfying for all, is that the Supreme Court strike down Prop 8 only in the circumstances in which it occurred in California, thereby meaning that only in California would same-sex marriage recommence.
The ruling on the Defence of Marriage Act is perhaps more simple. In essence, it is one woman’s argument that her huge tax bill upon the death of her same-sex partner was unfair. However, it has far wider consequences. In its judgment, SCOTUS could say the law is unconstitutional, meaning couples in the states that currently have same-sex marriage would have access to over 1100 federal laws and programmes that opposite-couples currently do, and begin to receive federal benefits. The court could say the law is constitutional, and nothing would change. A small sticking point is that the court could suggest it is powerless to decide the case, as both sides of the argument (including the Obama administration which would normally defend the law in these cases) agree the law is unconstitutional. Currently the Republicans from the House of Representatives are defending the law, but they may not have the standing to do so. In this very unlikely case, the least that would happen is that the plaintiff fighting against the law would get a tax rebate, but most agree it would still spell the end of the law.
Complicated huh? Hopefully, this week, SCOTUS will have ruled in our favour that all state same-sex marriage bans are unconstitutional and that the Defence of Marriage Act is the same. That’s the legal story, but what would be the human consequences? Because, in this, we often forget that this is about people, about love and about equality. Firstly, all LGBT couples in the United States of America will be able to recognise their love for each other equally to their opposite sex friends and relatives. Secondly and, perhaps most likely, same-sex couples who have been legally married will be able to share the exact same rights as opposite couples. Foreign partners will have the same immigration rights, stopping the heart-breaking stories of separated couples. Same-sex couples will enjoy the same tax breaks. Surviving same-sex partners will not suffer huge tax bills upon the death of their partners. A United States that treats its LGBT citizens equally will be a stronger one, and one that can persuade more countries across the world to do the same.
Public Opinion in the USA has swung rapidly in favour of equal rights for same-sex couples. In California, where only 5 years ago a majority voted for a constitutional ban on same-sex marriage, a majority now support it. Across the country the story is the same. I hope that the Supreme Court of the United States, the defender of the rights of the minority, will end years of legal discrimination and bring the laws of the land in line with the opinions of the public and the President. It will be a wonderful day.