Vol. 77/No. 14      April 15, 2013

The court’s decision to hear the two appeals comes after overwhelming evidence of changing attitudes among working people on the question, as part of widespread opposition to forms of legal discrimination.

Referenda results in last November’s elections blocked efforts to enact discriminatory marriage laws in Maryland, Maine, Minnesota and Washington. Same-sex marriage is now legally recognized in nine states and the District of Columbia.

In face of this shift in public opinion, some Democratic and Republican politicians have been rushing to go on record in support of legalizing same-sex marriage.

President Barack Obama, who opposed this in the 2008 election, said last year he was convinced by his children to change his position. Former President William Clinton, who signed the discriminatory 1996 Defense of Marriage Act into law, is now urging its repeal, as is Hillary Clinton. DOMA defines marriage as “only a legal union between one man and one woman as husband and wife.”

A layer of conservative figures, including Republican elected officials, have done likewise. Former Utah governor and presidential candidate Jon Huntsman was one of some 80 prominent Republicans who filed a supporting brief to the case challenging DOMA. Republican Sen. Mark Kirk of Illinois announced his support for same-sex marriage April 2.

The first case, heard March 26, was Hollingsworth v. Perry. It involves a challenge to California’s Proposition 8, a referendum passed in 2008 that amended the state’s constitution to restrict marriage to a man and a woman. After a federal court and court of appeals ruled the proposition unconstitutional, supporters appealed to the Supreme Court, which agreed to hear the case.

In one exchange during the hearing, Justice Antonin Scalia asked Theodore Olson, an attorney for opponents of Proposition 8, “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?” Olson replied, “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

“It’s an easy question,” Scalia replied. “At the time that the Equal Protection Clause was adopted [1868].”

DOMA has been used to deny same-sex couples a range of federal benefits that other married people receive, such as filing joint tax returns, collecting Social Security survivor benefits, and for members of the military even getting official notice of a spouse’s death. The second case, United States v. Windsor, challenged these aspects of the law.

The case was brought by Edith Windsor of New York City. She and her companion Thea Clara Spyer were married in Canada in 2007. Spyer died in 2009, leaving her property to Windsor. Under DOMA, the marriage was not recognized as valid and the Internal Revenue Service presented Windsor with a $360,000 tax bill. Windsor sued, and in October 2012 the U.S. Court of Appeals for the Second Circuit in New York struck down part of the law.

The National Association for the Advancement of Colored People was one of dozens of groups and individuals that filed amicus briefs in support of the challenge to DOMA.

“[L]ike early laws that were designed to oppress African Americans, DOMA relegates gays and lesbians to an unequal and inferior status as a group. This is contrary to the core purpose of equal protection,” the NAACP brief states, citing the 14th Amendment to the U.S. Constitution. The brief draws parallels to the fight to overturn laws banning interracial marriage, which were finally ruled unconstitutional in 1967.  
 
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