Nel's New Day

December 11, 2012

Marriage Equality Goes to SCOTUS, Part 1

Filed under: Uncategorized — trp2011 @ 8:51 PM
Tags: , , ,

Last Sunday same-sex couples had their first chance to marry in Washington state. Oregon’s largest newspaper, The Oregonian, printed several pictures of happy couples who could finally legalize their relationships. For many of us, looking at the photos was like standing outside a home and pressing our noses against the window, watching the happy people inside.

beard [Larry Duncan, 56, a retired psychiatric nurse, and Randell Shepherd, 48, a computer programmer, of North Bend (WA) apply for a marriage license after being together for 11 years. Although they’re not religious, Duncan said, “Enough people have told me, ‘God hates fags’. I want someone in a church to say, ‘God loves fags,’ to have that stamp on it.”] 

women[Deborah Needham, 48, and Nancy Monahan, 57, of Renton (WA) married on Sunday after being together 14 years. Monahan is a retired Coast Guard Petty Officer First Class and a Navy veteran. ]

Other photos! And more!

In nine states throughout the nation, marriage equality is state law. Oregon, on the other hand, is one of 31 states that have enshrined discrimination in the state constitution by banning marriage equality. Advocates of same-sex marriage are hoping that 2014 will be the year to overturn this bigoted amendment, but this would require over two-thirds of the vote in support allowing LGBT people to marry their partners. At this time, polls indicate 54 percent in favor and 40 percent opposed.

There’s one other way that marriage equality can be legalized and all other states—a Supreme Court decision. Following the plethora of laws about same-sex marriage across the United States and the recent rulings that DOMA, the federal law restricting marriage to a man and a woman, is unconstitutional, SCOTUS has taken on two cases on appeal from lower courts.

Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The buzz now is what will the Supreme Court decide.

Which Cases Did SCOTUS Decide to Hear?Hollingsworth v Perry is the California case that overturned Prop 8, banning same-sex marriages after 18,000 gays and lesbians had already legally married in the state. According to federal Judge Vaughn Walker, a fundamental right to marriage equality exists in the U.S. Constitution from Due Process and Equal Protection clauses. The 9th U.S. Circuit Court of Appeals upheld Walker’s ruling in a narrow ruling that Prop 8 is unconstitutional because it stripped away a previous right of same-sex couples to marry in California.

Windsor v United States challenges the $363,000 of estate tax that 83-year-old Edith Windsor was forced to pay after her partner, Thea Spyer, died in 2009. The two women had been together for 44 years and married in Canada because New York did not permit same-sex marriages. The 2nd Circuit Court of Appeals ruled that DOMA was unconstitutional, again based on the Equal Protection Clause of the 14th Amendment.

SCOTUS also plans to take up the issue of Article III standing, whether a person or group has the right to bring a case in court. The Supreme Court maintains that a person or group pursuing legal action must have suffered a direct and concrete injury in order to have standing in the case. After the California judge declared that Prop 8 was unconstitutional, the 9th Circuit Court determined that the opponents appealing the case lacked standing. They were merely ideologically against marriage equality.

SCOTUS also plans to examine whether House Republicans have Article III standing to intervene in the Windsor v United States case. If they lack standing in this case, they may lose their ability to defend similar laws, including other DOMA cases.

Which Cases Did SCOTUS Not Choose? The other cases which SCOTUS chose not to hear will not be overturned unless the high court’s final decision impacts them. 

1)    Diaz v Brewer deals specifically with health insurance benefits for LGBT state employees in Arizona.

2)    Gill v Bipartisan Legal Advisory Group of the U.S. House of Representatives and Massachusetts v United States Department of Health and Human Services deal with federal benefits denied to gay married couples, such as the right to file joint income taxes.

3)    Golinski v Office of Personnel Management (California) involves a married federal court employee who was refused the right to extend health benefits to her same-sex spouse. (So far Golinski is the only LGBT person in the country who has been allowed to begin receiving federal benefits while DOMA remains in effect.)

4)    Pedersen v Office of Personnel Management challenges DOMA in Connecticut as a violation of the 5th Amendment.

In Part 2 tomorrow, a non-lawyer’s take on what might happen to these cases in the next six months.


  1. As someone who lives in the very liberal Portland, I can tell you that Oregon seems like an odd place to have anti-gay marriage discrimination be the law of the state. Hopefully this can be changed.

    Also, anybody who seriously feels threatened by the two old ladies getting married in one of the Washington pictures has major psychological issues and needs help.


    Comment by eurobrat — December 12, 2012 @ 6:48 PM | Reply

  2. Reblogged this on Central Oregon Coast NOW.


    Comment by Central Oregon Coast NOW — December 11, 2012 @ 9:54 PM | Reply

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