The Future of Gay Rights in America

The future of gay rights in America is being debated in the Supreme Court this week as the court hears two cases involving marriage equality.

The first case the Supreme Court will be deliberating on is California’s ‘Proposition 8’. On 15^th of May 2008 California’s Supreme Court declared that marriage was a fundamental right that could not be withheld from people on the basis of who they wanted to marry. This infuriated the opposition that wants gay marriage to be banned and began trying to get the ruling overturned. The opposition decided that the best option was to ask the people of California, they managed to collect enough signatures to put gay marriage to a vote in November 2008. What became known as ‘Proposition 8’ was passed, by a margin of 4% and thus the court’s ruling was struck down. That was five years ago, and current polling out of California puts support at roughly 60% of the population. Recently there have been attempts to declare Proposition 8 unconstitutional in relation to California’s state constitution and on the 7^th of February 2012 the 9^th Circuit Court of Appeals made a 2 – 1 decision that Proposition 8 was indeed unconstitutional. Naturally the opponents of gay marriage weren’t prepared to give up and decided to try and take it to the Supreme Court on the 31^st of July. On the 7^th of December the Supreme Court agreed to hear the challenge to Proposition 8.

There are several ways in which the Supreme Court could decide to rule, first they have to decide if it is unconstitutional. If they decide that it is unconstitutional, they have several avenues that they could take;

1.      Make it apply solely to California (current polling would make this uncontroversial).

2.      Apply it to states that have passed Civil Unions that grant all the rights of marriage instead of the name. This would force the legalisation of gay marriage in other states that only have Civil Unions; Oregon, Nevada, Colorado, Illinois, Delaware, Hawaii, New Jersey and Rhode Island.

3.      Decide that gay marriage is a constitutional right and thus legalise it in all 50 states.

It is unlikely that they will rule the 3^rd way as it would simply be too controversial in many states and could harm the progress of people’s feelings towards gay people in states firmly opposed to gay marriage. The second is a real possibility but could be prove problematic as states would stop passing Civil Unions. The third is probably the most likely as it relates only to one state that is one of the most progressive in the US.

The second case the Supreme Court will hear is on the “Defence of Marriage Act” or DOMA as it is usually called. The act was passed in 1996 and signed into law by Bill Clinton (who has since called for the bill to be repealed). What the Act does is it defines marriage as between ‘one man and one woman’ and prevents the federal government from giving benefits to same-sex partners even if they are legally married in the state they reside in, such as Massachusetts. The anti-DOMA side is optimistic that it will be struck down as unconstitutional due to the state’s rights argument. This is the federal government restricting what the states can do, which might appeal to the more moderate conservatives on the court; Kennedy and Roberts.

The arguments for Prop 8 have already taken place today and DOMA will be held tomorrow. It is likely the gay rights side will get at least some of what they want, we’ll have to wait and see.