Mike Berman’s Washington Watch

March 30, 2013 9:00 AM

May 17, 2004 and the Decade that followed

State of Play
The Public
The Supreme Court
One More Milestone

It was May 17, 2004, in Cambridge, Massachusetts, a Monday like many other Mondays, except for one thing.
The night before, lines began to form in front of the Cambridge City Hall. At 12:01 a.m., for the first time, at any place in America, gay and lesbian couples could fill out a form entitled “Notice of Intent to Marry.” While there was a three- day waiting period between the filing of the notice and the issuance of a marriage license, the waiting period was waived for a number of couples and they were married on that day.

When talking about that day at dinner a few nights ago, my friend Mary Breslauer’s eyes lit up and she smiled. Mary was part of the group that led the effort to arrive at that moment.

[Note: Ten years earlier, in 1993, the Hawaiian Supreme Court ruled that the State could not deny gay people the right to marry each other. The right was taken away in 1998 when the voters enacted a State constitutional ban on same-sex marriage.

Vermont was the first State to enact civil unions, in 2000. But, as I learned a number of years ago from Mary, civil unions, by whatever name, are not the same as marriage. ]

The decade that followed that morning in Massachusetts was the turning point.

It took another four and a half years after Massachusetts issued its first marriage license for Connecticut to become the second State to issue marriage licenses to gay and lesbian couples, on November 17, 2008. Since then seven additional States and the District of Columbia have begun issuing marriage licenses.

  Date Legalized Date of Licenses Legalization Method
Massachusetts November 18, 2003 May 17, 2004 State Supreme Court
Connecticut October 10, 2008 November 12, 2008 State Supreme Court
Iowa April 3, 2009 April 27, 2009 State Supreme Court
Vermont April 7, 2009 September 1, 2009 State Legislature, Veto Override
New Hampshire June 3, 2009 January 1, 2010 State Legislature
DC December 18, 2009 March 3, 2010 City Council
New York June 24, 2011 July 25, 2011 State Legislature
Washington November 6, 2012 December 6, 2012 State Legislature/Ballot Measure
Maine November 6, 2012 December 29, 2012 Ballot Measure
Maryland November 6, 2012 January 1, 2013 Ballot Measure

Nine additional States have enacted what can be described as broad domestic partnerships or civil unions.

  Date Legalized Date of Licenses Legalization Method
New Jersey December 21, 2006 February 19, 2007 State Legislature following State Supreme Court Decision
Oregon* May 9, 2007 February 1, 2008 State Legislature
Nevada May 31, 2009 October 1, 2009 State Legislature, Veto Override
California* October 11, 2009 January 1, 2010 State Legislature
Illinois January 12, 2011 June 1, 2011 State Legislature
Rhode Island July 2, 2011 July 1, 2011 (retroactive) State Legislature
Delaware May 11, 2011 January 1, 2012 State Legislature
Hawaii February 23, 2011 January 1, 2012 State Legislature
Colorado* March 21, 2013 May 1, 2013 State Legislature

* These States have amendments to their State constitutions that ban same-sex marriage.

One State, Wisconsin, has enacted a limited civil union provision.

Two States, New Mexico (by opinion of its attorney general) and Rhode Island (by executive order of its governor), recognize same-sex marriages from States in which they are lawful.

But all is not roses. Thirty-eight States have anti-marriage constitutional amendments or statutes prohibiting same-sex marriages (including some of those which have enacted civil unions).

Public Support Has Grown

The roughly ten-year period since that first marriage license was issued in Massachusetts has seen an unprecedented movement in public attitudes toward gays and lesbians marrying.


  Should be Legal Not legal
Mar 2013 53% 39%
May 2012 42% 51%

While Democrats continue to be more supportive of same-sex marriage than Republicans, there has been considerable movement among Republicans since mid-2012.

  Should be Legal   Not legal
Mar 2013 37% 63% 56%   56% 30% 36%
May 2012 13 63 43   81 25 53

Washington Post/ABC News

  Should be Legal Not legal
September 2003 37% 55%
March 2013 58% 36%

The cross over point came in 2009/2010.

Democrats support gay marriage 72% to 23%

Independents support gay marriage 62% to 33%

Republicans oppose gay marriage 59% to 34%

Ten years ago Republicans opposed this form of union by 72% to 24%

While 33% believe that each State should be able to make their own laws, 64% believe it should be decided by the U.S. Constitution.


Since April 2011, a majority of respondents (51% in 2011) have stated that marriages between gay and lesbian couples should be recognized as valid.

March 2013 53% say they should be valid; 44% not valid 55%
  18-34 year olds71% valid; 25% not valid
  35-49 year olds49% valid; 49% not valid
  50-64 year olds47% valid; 49% not valid
  65+ years olds36% valid; 61% not valid
  57% of Americans acknowledge having a family member or friend who is gay or lesbian – up from 45% in 2007

PEW Research

Allow gays and lesbians to marry legally

  Oppose Favor
2003 58% 33%
2013 44% 49%

People born after 1980 favor by 70%

Those born 1965-1980 favor by 49%

Those born 1946-1964 favor by 38%

Those born 1928-1945 favor by 31%

Same-sex couples can be as good parents as heterosexual couples

  Agree Disagree
2003 54% 37%
2013 64% 32%

Homosexuality should be accepted by society

  Accepted Discouraged
2003 47% 45%
2013 57% 36%

By 66% to 30% Americans believe that same-sex couples should have the same legal rights as heterosexual couples


78% believe that there should be inheritance rights for gay and lesbian partners or spouses (11/12)

77% believe that there should be health insurance and other employee benefits for gay and lesbian partners or spouses (11/12)

By 54% to 39% Americans believe that marriage benefits should be made available to Federal Government employees who are legally married to a same sex partner.

Nate Silver 3/26/13

Average of 8 polls taken in 2013 – (from PollingReport.com)

  • 51% approve same- sex marriage
  • 42.5% oppose same –sex marriage

  • 28% approve same-sex marriage
  • 69% oppose same-sex marriage

  • 32% approve same-sex marriage
  • 60% oppose same-sex marriage
“the increase in support has been reasonably steady since about 2004”

36 of 53 Democratic and Independent members of the Senate supported full marriage rights for same-sex marriage in the fall of 2012.

Today, 46 of 55 Democratic and Independent members of the Senate and one Republican Senator publicly support same-sex marriage.

Last week the American Academy of Pediatrics, which represents 60,000 pediatricians, endorsed marriage equality for all consenting couples, including same-sex couples. In addition, the organization endorsed full adoption and foster-care rights for parents regardless of sexual orientation. [AAP Statement 3/20/13]

The Supreme Court

Earlier this week, the United States Supreme Court heard two cases that are very much a part of the continuing effort to expand the availability of same-sex marriage.

One case involves the so-called Defense of Marriage Act, which by its terms deprives even those same-sex couples who are legally married in one State with access to Federal benefits. The second case deals with the Constitutionality of a California referendum which overturned a California Supreme Court decision that the right of marriage could not be denied to same-sex couples.

Rather than attempt to explain these two cases, WW asked its favorite Federal appellate lawyer, Andy Pincus, to lay out the cases in a way that they can be understood by non-lawyers and fallen-away lawyers.

This week’s oral arguments before the Supreme Court in the two “gay marriage” cases have captured at least as much media attention as last year’s “Obamacare” case – and maybe more. But the particular legal issues in each case, and the ways that the Court might resolve them, have received relatively less focus. Following is a summary – for non-lawyers – of the questions before the Court in each case.

United States v. Windsor: the federal Defense of Marriage Act

An individual’s rights under more than 1,000 federal laws and regulations depend upon whether he or she is lawfully married – income tax rates, immigration rules, and Social Security survivors’ benefits are just a few examples. Prior to 1996, federal law simply incorporated state law definitions of marriage – if individuals had entered into a valid marriage under state law, they were married for purposes of these federal laws as well.

The Defense of Marriage Act (universally known as “DOMA”) changed that standard, providing that for purposes of federal laws and regulations “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.” Even if a same-sex marriage is valid under state law, DOMA provides that the parties to that marriage are not spouses for purposes of any of these 1,000 federal laws and regulations.

Edith Windsor and Thea Spyer were married in Canada in 2007. When Thea Spyer died, she left her estate to Edith Windsor, which triggered an obligation to pay more than $363,000 in federal estate taxes – federal law provides that a surviving spouse’s inheritance from the deceased spouse generally is not taxed, but because of DOMA that exclusion did not apply to Spyer’s bequest to Windsor. Windsor, as executor of her spouse’s estate, filed suit to recover the taxes, claiming that DOMA’s exclusion of same-sex marriages from the federal definition of “marriage” violates the Constitution. Both the federal district court and the federal court of appeals ruled that DOMA is unconstitutional.

The Supreme Court first must decide whether it has the power to resolve this constitutional question. Federal courts are limited to deciding “cases and controversies.” That means, among other things, that the party invoking a court’s jurisdiction must have suffered an “actual injury” that provides “standing to sue.”

Ordinarily, the federal government defends the constitutionality of federal statutes and the legal dispute between the federal government and the party challenging the statute satisfies the case-and-controversy requirement. Here, however, Windsor and the federal government agree that DOMA is unconstitutional. Does that mean there is no “controversy” for a court to resolve? The federal government and Windsor argue that the President’s determination that federal agencies must comply with DOMA unless a court directs otherwise demonstrates the continued existence of the necessary controversy, and some prior Supreme Court decisions support that argument.

DOMA’s constitutionality is being defended by the “Bipartisan Legal Advisory Group of the United States House of Representatives” (known as “BLAG”), which is made up of three Republicans and two Democrats (the Democrats oppose BLAG’s defense of the statute). BLAG’s participation could provide the needed case-or-controversy, but the Supreme Court has been skeptical of congressional “standing” in a number of past cases. BLAG’s presence in the lawsuit therefore may not remedy any standing deficiency.

The consequences of a ruling that the Court cannot hear the case would be significant: same-sex spouses would have to continue to bring their own lawsuits in order to obtain the federal rights available to other spouses. Unless a court of appeals held DOMA constitutional (and no court of appeals has reached that conclusion thus far), the Supreme Court could never issue a conclusive decision on the issue.

Assuming that the Supreme Court finds that it has the power to resolve the merits of the constitutional question, it will determine whether DOMA deprives spouses in state-recognized same-sex marriages of the equal protection of the laws. A key question in equal protection analysis is the extent of the burden on the government to justify the distinction drawn by the challenged law. Most legislative classifications need only a “rational basis”; categorizations based on race, on the other hand, are subject to “strict scrutiny” and must be justified by a compelling governmental interest. Distinctions based on gender receive “heightened scrutiny” – requiring that they are “substantially related to an important governmental objective.”

The Supreme Court could determine that classifications based on sexual orientation, like the one in DOMA, must be justified by heightened scrutiny, a ruling that would make it easier to invalidate other laws that discriminate on this basis. Or it could conclude that only a rational justification is needed.

Importantly, a decision that the rational basis test applies does not mean that DOMA would survive. Several courts have held there is no rational justification for DOMA’s distinction between state-recognized opposite-sex marriages and state-recognized same-sex marriages. Indeed, because the definition of marriage is an area in which the states are accorded broad authority, some of the Justices who are supportive of states’ rights – such as Justice Kennedy – may conclude that DOMA can be upheld only if there is some significant federal interest in overriding states’ decisions to recognize same-sex marriages. The Court could therefore invalidate DOMA without deciding that other types of laws discriminating on the basis of sexual orientation should be subject to heightened scrutiny.

Hollingsworth v. Perry: California’s Proposition 8, which bans gay marriage

The California Supreme Court in May 2008 invalidated a state law that restricted marriage to opposite-sex couples. Sixth months later California voters approved a ballot initiative – Proposition 8 – that amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Two same-sex couples who wish to marry filed a lawsuit in federal court asserting that Proposition 8 violates the equal protection guarantee of the United States Constitution.

The California officials named as defendants (including the Governor and Attorney General) declined to defend the constitutionality of Proposition 8. The individuals who proposed Proposition 8, and were designated as its official proponents, joined the lawsuit to defend the measure’s constitutionality. Following a trial, the federal district court held Proposition 8 unconstitutional and the court of appeals agreed.

In this case too there is a question about whether the Supreme Court has the power to decide the constitutional question. The issue here is whether the proponents of a ballot initiative have a legal interest in the measure’s constitutionality sufficient to create the required “case-or-controversy.” Although the California courts have said that state law gives the proponents an interest in defending the measure’s constitutionality, it is not clear that this state-law interest is concrete enough to satisfy the federal law case-or-controversy requirement. Many observers believe that the chances are significant that the Court will find a lack of “standing” and decline to address the merits of the constitutional question in Hollingsworth. (In contrast to the federal government’s position in Windsor, California did not seek or support Supreme Court review of the constitutional question.)

If the Court does reach the merits, it will face the same question discussed above regarding the equal protection standard that should apply. Again, a heightened scrutiny standard is more likely to lead to invalidation of Proposition 8’s ban on same-sex marriage. But even under a rational basis test, there remains the possibility that Proposition 8 could be invalidated.

The Court could issue a broad ruling that would invalidate all same-sex marriage bans. But several arguments have been advanced that would enable the Court to issue a ruling that would not apply nationwide, but rather would be tied to particular facts present in California. First, California initially recognized same-sex marriage and then changed its law to ban same-sex marriage. The Court could conclude that the elimination of a previously-recognized right requires special justification that is not present in this case – a rationale that would apply only to California.

Second, California’s civil union law provides same-sex couples with all of the legal rights of married couples and, in addition, California permits same-sex couples to adopt children. But California refuses to extend the designation “marriage” to those same-sex couples. The Court could conclude that in these circumstances there is no government interest that justifies depriving same-sex couples of the benefits of the “marriage” designation. (This argument, if accepted by the Court, would likely apply to eight other states that have civil union laws similar to California’s.)

Of course, the Court could uphold Proposition 8 and reject the constitutional challenge, which likely would erect a significant obstacle to challenging other same-sex marriage bans on equal protection grounds.

Although the legal arguments advanced in Hollingsworth are of course important, perhaps more significant in the long term are some of the friend-of-the-court briefs that have been filed urging the Supreme Court to invalidate bans on same-sex marriage. One was filed by more than 100 Republicans, led by former Republican National Committee chairman Ken Mehlman. Another was filed by dozens of businesses. And still another by religious organizations. Whatever decision the Court renders, these briefs provide concrete evidence of the dramatic societal shift on the marriage issue, a shift that will influence the Court but that will have its greatest and most far-reaching effects outside the Court.

One more milestone in the decade

In 1993, President Bill Clinton’s attempt to fulfill his campaign promise to allow gays and lesbians to serve openly in the military resulted in the establishment of the “Don’t Ask Don’t Tell.” Gays and lesbians could serve as long as no one knew about their sexual orientation.

Presidential candidate Barack Obama called for a full repeal of the law during his 2008 campaign. In December 2010, the law was repealed.

Beginning on September 20, 2011, gays and lesbians could serve openly in the United States military.

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