By Irene Morse
The Supreme Court’s decision to hear two cases involving gay marriage, Hollingsworth v. Perry and Windsor v. US, represents a watershed moment for LGBT relationships. This is, after all, the first time the nation’s highest court has agreed to voice its opinion on the matter.
It’s an extremely important moment not just for the 500,000 LGBT individuals in committed monogamous relationships unrecognized by governments, but also the 130,000 same-sex couples who married in their own state and receive no legal protection in many others. To them, DOMA might as well be another four-letter word.
The constitutionality of DOMA, or the Defense of Marriage Act, is the basis for one of the two cases up before the Court. The federal law, effective since 1996, defines marriage as only between a man and woman and does not require state or federal governments to recognize same-sex marriages performed in other states.
Justice Antonin Scalia, who is sure to vote in favor of DOMA, recently spoke out strongly against gay marriage. In response to a student’s question at a recent speaking engagement, he said, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia’s comparison was disturbing to those who advocate for marriage equality. Comparing murder to LGBT relationships is likening an act that harms others and has negative social consequences to one that does not.
The justices are highly aware that public opinion about same-sex marriage is rapidly changing, made evident by recent gay marriage electoral victories in Washington, Maryland, Maine and Minnesota. And yet these triumphs may push the Court toward a decision in favor of DOMA under the premise that Americans can change that law through the electoral process. A decision in favor of DOMA would still set gay marriage efforts back significantly, and would mean that the law will be out of step with public opinion for quite some time.
Contrary to popular belief, if the Court declares DOMA unconstitutional it still will not be legal for same-sex couples to marry in every state. Currently 30 states have constitutional amendments that ban gay marriage, which will still apply even if DOMA is struck down. An additional 11 states ban gay marriage through statute. A Supreme Court decision that eliminates DOMA will have the most impact at the federal level, specifically for those in the military and working in government agencies whose partners cannot currently access spousal benefits such as health insurance.
Many view gay marriage and other inequities against LGBT people as the civil rights issue of the Millennial generation. The recent gay marriage referendums sent a clear signal that Americans are increasingly excited about supporting LGBT couples who wish to commit to each other through marriage.
But if gay marriage is a question of civil rights and equality under the law, it is not an issue that should be put to a popular vote. The Supreme Court has a chance to affirm the principle of equality and stability in LGBT relationships, but it can just as easily set back gay marriage efforts, leaving LGBT relationships without the legal protections they deserve.