Ari Ezra Waldman | DOMA | Edie Windsor | Gay Marriage | News | Proposition 8 | Supreme Court

What the Prop 8 and DOMA Cases Really Mean


SupremesThe Supreme Court will hear nearly three hours of arguments in Windsor v. United States and Hollingsworth v. Perry on March 26 and 27 to determine if DOMA and Prop 8 are constitutional. In the coming days, I will review and summarize some of the central legal questions in those cases. For today, I would like to take a longer view, focusing on what sometimes gets lost in the legal, political, and media coverage of the cases: the real way in which these cases will change the daily lives of every gay person.

Law sometimes seems so esoteric and arcane that legal professionals and laypersons alike complain that the system is rigged, that only politics matters, or that it doesn't matter which way a judge decides because it won't affect our daily lives either way. Not true, especially for these cases. Even a decision on some of the most highfalutin legal concepts -- the level of scrutiny a judge should use to determine whether a given statutory classification of persons satisfies constitutional requirements, for example -- could have a direct impact on the relationship between gay persons and the state and, therefore, on how we live our lives.

Like Lawrence v. Texas, which changed all gay persons from presumptive criminals to members of a constitutionally protected class, Windsor and Hollingsworth could make gays fully equal under the law, with the remaining discrimination falling steadily like dominoes. The latter two cases, to be decided almost exactly 10 years to the day after Lawrence, ask if there is any legitimate reason to discriminate on the basis of sexual orientation. If no such reason exists -- which it doesn't -- it's hard to imagine how any anti-gay discrimination could ever be permitted again.


Edie_theaWindsor and Hollingsworth will certainly change the lives of at least 5 people. Don't forget that at the heart of these cases are the indomitable Edie Windsor (at the center of the DOMA challenge), and (responsible for the challenge to Prop 8) a couple of smart, professional woman, Kris Perry and Sandy Stier, and a couple of regular guys, Jeff Zarrillo and Paul Katami. And, Ms. Windsor is not just challenging DOMA because she was forced to cut a $350,000 check to the U.S. government because she is gay. She is challenging DOMA because the discriminatory law devalues the life she spent with her late wife, Thea Spyer, and it devalues Thea's memory in death: Because of DOMA Section 3, it was as if Thea died without ever knowing Edie. It treats them as strangers, as less connected than Kim Kardashian and Kris Humphries, or you and your cab driver, or you and the guy who just hooked up your cable. These are the effects of 61 words in the federal code and they are devastating.

Ms. Perry and Ms. Stier, along with Mssrs. Zarrillo and Katami, just want to get married. A decision striking down Prop 8 will let them, and thousands of other committed gay couples, affirm their commitments and emerge from second-class citizen status. Sure, they will get the tangible benefits of marriage, but an end to Prop 8 will mean much more.

We know all this. We have been talking about the importance of the freedom to marry for years. But, these cases have the opportunity to do nothing less than change the relationship between gay persons and the state, much like Lawrence did 10 years ago. Back then, when states could criminalize our most intimate behavior, our community looked with longing eyes to anything that was better than being presumptive criminals. Obtaining second-class citizen status seemed like a victory. Today, we are, at best, second-class citizens, longing for the full equality we have always deserved. Hollingsworth and Windsor have the power to give us that equality under the law.

That does not mean that all vestiges of discrimination will fall apart if the Supreme Court issues pro-equality decisions in the DOMA and Prop 8 cases. There is employment discrimination, tacit and overt discrimination in public accommodations, rampant abuse and harassment of gay persons in schools, the workplace, and the military that are not addressed, and a plethora of other ways in which gays are still burdened by anti-gay hatred.

But, the Court could issue a decision that delegitimizes the rationales for all of these forms of discrimination in the following three ways:

First, the Court could say that anti-gay discrimination merits heightened scrutiny, which would mean that few laws would ever pass constitutional muster. That would be the easiest path to full equality under the law, but it is not clear to me that a majority of this Court is ready to make a clear statement mandating heightened scrutiny.

Second, the Court could muddle along without making any clear statement about scrutiny, but find that no justification for DOMA or Prop 8 pass even the lowest form of constitutional scrutiny. This may seem less helpful than a heightened scrutiny holding, but since it is a fact that discrimination against gays in all areas has often been justified on similar grounds, a declaration that those justifications are irrational would delegitimize the bases for all other forms of discrimination.

Third, any pro-equality decision from the Court has the expressive effect of telling traditionalists and discriminators that they are increasingly part of the fringe and that the policies they push are illegitimate, antiquated, and morally wrong. The end to marriage discrimination says that gays are equal. And, a clear statement from the Supreme Court in that regard says that discrimination against gays is just wrong. With an end to Prop 8 and DOMA, American law will catch up to its people. The dominoes will fall from there.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.

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  1. Nice summary, Ari.

    Posted by: Thomas | Mar 21, 2013 12:40:58 PM

  2. I wonder what the reaction will be if the Supreme Court actually goes all the way and says any type of anti-gay discrimination is unconstitutional. Will the deep south states go along with the decision or will they defy the orders like they did with protections for people based on race?

    I certainly hope we get the strongest decision from the Supreme Court, but I worry about the anger we will see from the bigots. We just have to hope Justice Kennedy does not allow this possible negative reaction to sway his decision in the cases.

    Posted by: joeyhegele | Mar 21, 2013 1:02:49 PM

  3. States (particularly in the South and the bible/Mormon belt) will do everything they can to negate the "gays can get married" decision just as they have to prohibit abortion for poor women. Bigotry, in "bible disguise" knows no limits.

    Posted by: Hamish | Mar 21, 2013 1:18:27 PM

  4. There are other possibilities for the decision on Prop 8. The court could decide that the litigants don't have the standing to bring the case thus resulting in marriage equality in CA only and no effect anywhere else. The court has asked for arguments on standing. So, they must feel there is a question there to make a decision about. And, wouldn't Bois and Olsen be obliged to argue on their client's behalf that there is NO standing to bring this action to the Supreme Court because that would mean a win for their clients?

    Or, if they do take the case and allow for standing, they could agree with the 9th circuit decision that in the unique circumstances of CA being marriage was once legal, it couldn't then be taken away. Again, this would end up with marriage equality in CA and have no effect anywhere else in the country.

    Posted by: anonymous | Mar 21, 2013 1:23:00 PM

  5. They could also rule against equality. We should talk about those possibilities too.

    Posted by: Bruno | Mar 21, 2013 1:41:23 PM

  6. In June, same-sex marriage will be legal nationwide.

    Posted by: Thomas Alex | Mar 21, 2013 2:25:21 PM

  7. Yeah, Im with Anon and Bruno....

    While the hope is a decision that positively benefits us all, my feeling is that certain members dont want to create "law" and will do all they can to make sure this is a very narrow decision applying only to California.

    While I dont think they will or even can shut down equality, I can envision a a two tiered system. They could rule that "marriage" is a state issue and still strike down Prop 8. And even strike down DOMA. So we would have the Federal government recogizing marriages but still have the status quo in the states. This would lead to other cases but the conservatives can string it along for years to come.

    Posted by: Homo Genius | Mar 21, 2013 2:26:16 PM

  8. You are really doing a great job of helping people understand these supper complicated and complex cases. It saves me a lot of time explaining the cases to my friends when I say just go read towleroad.

    Posted by: Rees Cramer | Mar 21, 2013 2:56:16 PM

  9. Isn't one of the options in the DOMA case that they might only find Section 3 unconstitutional (the federal definition of marriage), and not address Section 2, thereby still leaving it up to states to decide whether they want to recognize marriages formed in other states?

    Also, I'm with anon in that it sounds like they took the Prop 8 case to rule about the standing issue. I wouldn't doubt we'll be left with a lot of muddling.
    - jmho

    Posted by: Rexford | Mar 21, 2013 4:02:58 PM

  10. It will be intresting to see how far they go.
    I will say that I agree with articles I've read elsewhere that many Republicians are secretly hoping the court will over turn DOMA and Prop 8 simply to make the whole issue go away.

    Posted by: Kevin | Mar 21, 2013 4:19:49 PM

  11. Your series is of great help, Ari. I shamelessly cribbed from you in a guest lecture on these cases that I gave to the local law school.

    Justice Scalia has painted himself into a corner. His historical reputation is already lower than Justice McReynolds' and is approaching Chief Justice Taney's. He can cement (as in cement shoes) that rep with another churlishly insufferable dissent comparing LGBTs to God-only-knows-what. Or he can reverse it by joining (or even speaking for) a unanimous Court at Chief Justice Roberts' request. For the latter, this is his Chief Justice Warren moment. If he can herd all eight of these cats into a single voice on this issue, his rep will go sky high and the Court will add luster to its institutional rep.

    Even lawyers can dream.

    Posted by: John | Mar 21, 2013 4:51:16 PM

  12. Strange, but they will still be "second class citizens" even it all passes.

    Posted by: Tim | Mar 21, 2013 4:52:05 PM

  13. I think they'll take the easy way & deny standing... With DOMA they're cornered b/c it's just so blatantly discriminatory. Not that Prop 8 isn't, but they'll avoid the big decision.

    One thing for sure, the oral arguments are going to be a blast and I'm totally psyched we're getting same-day releases.

    Posted by: Pete N SFO | Mar 21, 2013 5:06:20 PM

  14. @Rexford... It's ONLY Section 3 of DOMA that is being challenged in the case. Section 2 isn't being addressed at all. Although, the court theoretically could strike down Section 2 if it wants to even when it's not a part of the case. I just wouldn't expect them to.

    Posted by: anonymous | Mar 21, 2013 5:13:53 PM

  15. @Rexford: Section 2 of DOMA is not a part of this case. That will have to be handled under another case. On the other hand, if Section 3 go away, many states will decide it's in their best interest to at least recognize same-sex marriages from other states, lest a new 'brain drain' takes hold and talented and highly qualified people exit those states and settle where they have legal protections. You'd think that the Full Faith and Credit clause of Section 1 of Article 4 would cover it, but apparently it doesn't. Not all states are required to recognize all marriages from other states now, for the straight people, so you know it won't apply to us.

    Posted by: RWG | Mar 21, 2013 5:24:21 PM

  16. I think they'll have to deny standing in the Prop 8 case. It is absurd that initiative proponents could permanently represent the state on the initiative they put in front of the voters, even after it's enacted, even after it's found unconstitutional, even after voters elect a legislature and executive who oppose the initiative, forever and ever. What happens when initiative proponents die? Do they get to pass this special privilege on to their kin? The whole thing is absurd. These people answer to no-one.

    Posted by: Randy | Mar 21, 2013 6:02:59 PM

  17. @ anonymous & RWG - Thank you both for clarifying that.

    Posted by: Rexford | Mar 21, 2013 6:14:26 PM

  18. It will be a 7-2 or 6-3: with the bigots and compromised falling to the death-bed of history!

    There is no conceivable argument that can be made to reject this plea for EQUALITY!

    France and the United kingdom join the civilized world in a couple of months; what say you America.!..Land of the Free and Home of the Brave!

    Posted by: BRAINS | Mar 21, 2013 6:19:59 PM

  19. I think that the SCOTUS, on the standing issue in the Prop H8 case, will punt and grant some sort of limited standing to the proponents so that the court can rule on the merits.

    If they do that, and there's no reason why they can't (see Bush v. Gore on certain rulings not constituting precedents), then I would expect them to rule narrowly on Prop H8 so that the ruling will only apply to the unique California situation.

    Posted by: TomTallis | Mar 21, 2013 6:39:25 PM

  20. @TomTallis.... If the court didn't want to address the issue of standing and feels the need to "punt" and not create precedent, they just shouldn't have ASKED for the issue of standing to be argued in the first place. It was the justices who ASKED for standing to be addressed, not either ofthe parties.

    Posted by: anonymous | Mar 21, 2013 11:13:40 PM

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