The 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.
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Windsor 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.