High Court Equal Right to Marry Cases Make for ‘Blockbuster’ Year

On February 8, 2013, Supreme Court Justice Ruth Bader Ginsburg regaled us with the nuances and realities of working at this country’s highest court.  Of all the anecdotes and life lessons shared by the Justice that day, the most intriguing was her perspective on the cases to be heard in the upcoming term.  Justice Ginsburg candidly revealed that she did not like to look back on the past but would rather look forward to the future.  As a brand new judge, a senior colleague of Justice Ginsburg advised her to “do [her] best job in each case, but when it’s over…don’t look back. Go onto the next case, and give it your all.”  Move on, Justice Ginsburg will.

The docket for the 2013 session is peppered with controversial cases, ranging from the constitutionality of taking DNA samples from arrestees under the Fourth Amendment, to enforcement of the Voting Rights Act of 1965, to the First Amendment rights of entities providing AIDS and HIV funding overseas.  In March, the High Court will hear two cases, back-to-back, concerning the equal rights of individuals to marry.  First, Hollingsworth v. Perry will address the California’s highly controversial Proposition 8. Proposition 8 declares that only unions between a man and a woman will be recognized by the State.  The following day, the Court will hear oral arguments in United States v. Windsor, which challenges the constitutionality of the Defense of Marriage Act (DOMA) under the Fifth Amendment’s guarantee of equal protection.  DOMA defines marriage as a legal union between one man and one woman, and permits each state to determine whether or not it will recognize the union, and subsequent rights, of a same-sex couple, even if the couple is married in another state.  These cases are “tremendously important” to the Justice, and with both of these cases on the line in the near future, it is no wonder Justice Ginsburg proudly stated that “people thought last term was blockbuster term. This will exceed last term.”

In support of their position opposing equal rights, opponents of gay marriage cite their perceived concerns over procreation and childbearing. This argument has consistently failed the anti-equal rights coalition.  There are a slew of heterosexual individuals incapable of procreation, including the infertile, the incarcerated, and the elderly.  Moreover, this argument fails to take into account the reality that many modern heterosexual couples choose to abstain from having children.  At the end of the day, even with the recognition of civil unions or domestic partnerships, with all their grants of certain marriage-like rights, same-sex couples are deprived of the dignity of marriage.  It has been long established that separate is not equal, and failing to recognize marriage for all individuals, regardless of sexual orientation, encourages notions of inferiority, separateness, and unequal treatment.  It is my sincere hope that the Supreme Court will recognize that we all deserve the right to marry the person we love, for better or for worse.