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SCOTUS & Gay Marriage: Two Reactions To One Big Issue

By Hyan Freitas | News Director | June 27th, 2013 | SHOW COMMENT(1)

One June 26th, 2013, the Supreme Court ruled on two landmark cases dealing with same-sex marriage. DOMA, which defined marriage as an act between a man and a woman was deemed unconstitutional.  California’s Prop 8 was not taken up by the court, thus essentially paving the way for the resumption of gay marriage in that state due to a previous ruling by a lower court.   These rulings, and the broader issues that spurred them, have and will continue to be, the subject of fierce debate across the United States. 

We asked Jordan Lewis, the former president of the UM Young College Democrats, and Alex Alduncin, former president of the UM College Republicans (both are current Counterpoint contributors) to give their first takes on the historic decision:


From Jordan Lewis:

Today, the Supreme Court ruled that the Defense of Marriage Act was unconstitutional. It also ruled that the appellants in the case involving California Proposition 8 lacked standing, and thus the lower court’s ruling that Proposition 8 was unconstitutional stands. It is a great day for this nation and historically, a significant day towards promoting equality. It also comes close to the anniversary of the Stonewall Riots.

As detailed in the case of United States v. Windsor, Edie Windsor married her partner in Canada in 2007. At the time, the State of New York would not perform same-sex marriages but recognized them in other jurisdictions. In 2011, New York started performing same-sex marriages. Under the Defense of Marriage Act (DOMA), the federal government (and the states) did not have to recognize marriages performed in other jurisdictions and states. As such, the federal government taxed Mrs. Windsor upon the death of her spouse in 2009. Married couples are exempt under the law from inheriting the property of the other spouse, but since the federal government did not recognize Mrs. Windsor’s marriage, she faced a tax of more than $363,000. She appealed and the case eventually went to the Supreme Court. President Obama decided in 2011 not to defend DOMA, as it was his opinion that it was unconstitutional.

Justice Kennedy was joined by Justices Sotomayor, Breyer, Ginsburg, and Kagan in the majority opinion. Justice Kennedy had 10 years earlier to this date in Lawrence v. Texas struck down the sodomy law in Texas and 13 other states, making same-sex sexual activity legal in every state. Kennedy argued that the responsibility of regulation of marriage had historically fallen to the states. However, marriage plays a large role in federal statutes. Military pensions, tax provisions, and immigration are among a few of many (1,000 plus) fields that are affected by a petitioners’ relationship status. The State of New York chose to include same-sex couples under their definition of marriage. Kennedy noted that it “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality”. However, not all New York married couples were treated the same. Most received federal benefits related to their marriage. Others, however, were deprived of the same rights. Because of the denial of married status at the federal level, DOMA placed same-sex couple in the unenvious position of being in a second-tier marriage, and burdened both the couple and the children they raise. As such, DOMA denied the liberty protected by the Due Process Clause of the Fifth Amendment. Because DOMA enacted inequality into United States law, treating some couples differently then others, and resulting in significant burdens, Section Three was struck down by the Supreme Court. The federal government now must recognize the marriages of those residing in states that permit same-sex marriage.

California’s discriminatory law, Proposition 8, was not taken up by the Supreme Court, ruling that the appellants did not have standing. The Court reaffirmed a 2010 ruling in a United States district court that said that Proposition 8 was unconstitutional. Proposition 8 had replaced an earlier law that granted same-sex marriage rights to Californians. Governors Schwarzenegger and then Brown and Attorneys General Brown and Harris declined to defend the initiative in court. In their place, Dennis Hollingsworth of protectmarriage.com defended the amendment. Justice Vaughn Walker overturned Proposition 8 in the US District Court based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment, concluding that California had no rational basis or vested interest in denying marriage licenses to same-sex couples. The case was appealed, and eventually the Supreme Court granted certiorari to Hollingsworth. However, the Supreme Court denied standing to Hollingsworth because as Chief Justice Roberts noted, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to”. Thus, Walker’s opinion was restored. Same-sex couples in California will have the right to marry very soon. I think the Court purposely avoided a contentious ruling by not ruling on the merits of the case one way or the other.

Where do we go from here? The fight has just begun, and we should not rest until same-sex marriage is legal in every state. Section Three of DOMA was struck down, but Section Two was not challenged and still stands. Section Two allows states the rights not to recognize marriages performed in other jurisdictions. This is still discriminatory and violates the Full Faith and Credit Clause of the Constitution. If a driver’s license from New York is recognized in Alabama, so should a marriage. Section Two should be challenged and hopefully overturned in the courts. Other states will legalize gay marriage via legislation or ballot initiative. As of today, 1/3 of Americans live in a state where gay marriage is legal. Illinois, Hawaii, Oregon, Nevada, and Colorado all look to take the next step in the near future, while Chris Christie’s veto is the only thing standing in the way of New Jersey. Other states will be more difficult, especially if they have constitutional amendments that ban marriage in their states, Florida included.

Our next step is to lobby our Congress to support the Employment Non-Discrimination Act, which would prevent the firing of workers based on sexual orientation. Only two Republican Senators and three Republican House members have sponsored ENDA. Pressure Senator Rubio to include rights for LGBT couples in the immigration bill. Florida Governor Scott opposes gay marriage and adoption, and thus we should replace him with a Democrat who supports marriage equality. Unfortunately, Florida has a regressive legislature hostile to LGBT rights, and a population that is mixed on same-sex marriage, so the 60% needed to change the Florida Constitution will be difficult to come by. Generally, civil rights should not be based upon the whim of the majority, so the Florida Supreme Court may be the best remedy for LGBT activists. It would be up to activists to convince the Court that the Florida Marriage Amendment (Amendment 2) violates the principle of “equal civil and political rights to all” in the Preamble of the Constitution, and the Equal Protection Clause.

But Kennedy’s opinion leaves hope for many of these to be overturned in State Supreme Courts. It is somewhat inconsistent to have a federal policy that supports same-sex marriage rights and states that don’t. Kennedy states that the statute, “for no legitimate purpose overcomes the purpose and effect to disparage and to injure those from whom the State, by its marriage laws, sought to protect in personhood and dignity”.

It is up to the States to determine whether their anti-gay marriage laws have any legitimate purpose. They don’t. There is no legitimacy to arguments against same-sex marriage. All of the arguments against LGBT rights are either based in fear, prejudice or a misguided sense of religion and neither should play a role in determining policy. The fears of some about gay marriage have been shown to be completely unfounded. Moreover, no person should suffer financially or legally because they move from New York to Florida. No American should face any disadvantage due to his/her sexual orientation. We need to make sure that DOMA Section Two falls, marriage equality is passed in every state, and that all protections are given to LGBT persons. We can and should do better than the status quo.

This is a great day for America, a great day for equality, but another reminder to keep working for progress. The gay rights movement is the new civil rights movement, and one we cannot stand to lose. We need to fight homophobia in our words, language, and culture. Frank Ocean and Jason Collins can make good role models. Save Dade, a local advocacy organization, have done wonders in our community, culminating in Miami-Dade County’s domestic partnership law. Become an ally. The fight for gay rights is a struggle for liberty, justice, and freedom. It’s a fight for America.


From Alex Alduncin:

As president of the UM College Republicans for the 2012/13 year, you may be wondering how I feel about the Supreme Court decisions today (But probably not.  I’ll go ahead and write about it anyway).  If you listen to Counterpoint, you’ll know that I support same-sex marriage, and yet I am an ardent Republican.  Seems like I should have conflicting feelings, no?


I believe that the decision by the Supreme Court today to deem parts of the Defense of Marriage Act unconstitutional is an important step in a long process that will ultimately end in the acceptance of same-sex marriage nationally or near-nationally.  Originally signed by President Bill Clinton in 1996, the law prevented the federal government from recognizing state same-sex marriage licenses for certain federal benefits, and allowed states to have the option to not recognize other states’ same-sex marriages.  The first part is now void; the second part remains in place.


This is a state-by-state issue, and as a result will take years or decades to filter through to most states.  If you are gay and live in a state with same-sex marriage, you will now have identical protection under both state and federal law as your heterosexual counterparts.  At some point in the not-so-near future, the Supreme Court will most likely take up a case involving a state which does not have same-sex marriage, and rule that states cannot bar gay couples from marrying.  The court had a chance to do that today with California’s Prop 8 case, but punted it.  It’s a shame, because that would have been the truly historic victory.


Let’s talk about the opponents of same-sex marriage for a moment.  In fact, let’s talk about people in general.  Opponents of same-sex marriage are not any more bigoted than any other random group of individuals.  There are bad seeds, just as there are bad seeds within the supporters of same-sex marriage.  But in general, these people are just like you and me.  They are your grandmothers, your fathers, your mentors, your friends, your countrymen and countrywomen.  In general, they do not hate gay people.  They just believe that the word marriage has a set-in-stone definition and are willing to fight for that definition.  One thing you cannot statistically generalize them as?  Republicans.


As much as the Obama 2012 campaign wanted to, and succeeded in, framing same-sex marriage as a partisan issue, it is really a generational one.  If you ask a young Republican if they support same-sex marriage, the answer will probably be yes.  If you ask an old Democrat if they support same-sex marriage, the answer will probably be no.  In fact, about one third of all Democrats are opposed to same-sex marriage.  Four years ago, that number was nearly half.   If you had asked superhero Barack Obama 10 months ago, his answer would have been no.


That conveniently changed right before the election.  The 2012 GOP stance on same-sex marriage was identical to the 2008 Democratic stance.  Not to mention that this stance is “all the benefits of same-sex marriage, but let’s officially call it a union instead of a marriage”.  What stands in the way of same-sex marriage is a generation that grew up in a different time period, not the GOP.  We just happen to have the more…experienced citizens in our party.  Which is great for us, most of the time.  I’m going to bet that they’ll let the stubbornness of one word go away for 2016.


The Republican Party was the driving force in helping to emancipate slaves, ratify the 19th amendment giving women the vote, and pass the Civil Rights and Voting Rights Acts.  They will be on “the right side of history” once more with same-sex marriage.


And the opponents of same-sex marriage?   Be careful how you judge them, because we will be judged the same way by our children for whatever unforeseen issue we feel one word is worth fighting over.



Counterpoint Clip: Eyes on SCOTUS

By WVUM News Staff | June 25th, 2013 |

Counterpoint: Eyes On SCOTUS by Wvumnews on Mixcloud


The Counterpoint team presents their preliminary thoughts on the historic cases in front of the U.S. Supreme Court in 2013 including looks at the Voting Rights Act and two cases regarding same-sex marriage.  Aired June 21, 2013.

Counterpoint is live Fridays at 1pm ET on WVUM 90.5FM in South Florida and worldwide at WVUM.org