This term at the Supreme Court will decide what gay rights law will look like for a decade. But, before we get to the substance, we have to deal with some procedure: On Friday, November 30, the justices will meet to decide which of the several cases they will take in order to answer basic questions about the Equal Protection Clause, due process, levels of scrutiny, and the future of marriage.
As many of you know, the Defense of Marriage Act (DOMA) is up for review after both the First and Second Circuits -- not to mention a California district court and several other courts -- declared it unconstitutional. There is also California's Proposition 8, that state's constitutional ban on the freedom to marry, which the Ninth Circuit declared unconstitutional in a groundbreaking, but narrow decision. Also, Arizona is trying to take away domestic partner benefits while leaving state benefits to married couples in place. Though a lower federal court stopped Governor Jan Brewer from implementing her latest antigay rule, the Supreme Court is being asked to step in and decide the matter.
These cases are different: The DOMA cases challenge the federal definition of marriage and the benefits associated thereof. And, there are several DOMA cases -- Gill, Massachusetts, Windsor, Pedersen, and Golinski; some of these cases put the level of scrutiny of antigay discrimination front and center, while others would not require the Supreme Court to decide the issue. Nor do these cases say anything about the constitutionality of state bans on marriage recognition. That is what the Prop 8 case is about, but it is itself unique, referring to the specific situation in which California granted marriage rights only to take them away months later. The Arizona case concerns a state that not only bans its gays from marrying, but wants to further burden them by denying them -- but not opposite-sex married couples -- the state benefits of marriage.
Collectively, the Court's decisions in these cases will change the legal landscape for gay persons and gay couples. They will decide if we are equal or relegated to second class status. They will change how we think about and argue gay rights cases in the future. They will change what it means to be gay in America. And, in all likelihood, it will change for the better.
AFTER THE JUMP, I discuss what will happen to tomorrow, offer what I think are the most likely outcomes, and suggest what the next steps going forward will be.