Ladies, Gentlemen, and Undecided, Gay Marriage May Be Coming To a State Near You!!

 By Guest Writer, Addison

A couple of days ago I was sitting in my office, door closed, with a brief open in front of me… crying.  I’ve never shed a tear at work.  It’s just not my style.  But, reading this brief written to the United States Supreme Court in support of marriage equality moved me.  I thought about what was about to happen in this country and how so many lives could change.  In just days, the Supreme Court would consider, for the first time in history, whether the constitution guaranteed marriage equality.  It overwhelmed me.  It made me think about how grateful I am to be who I am at this moment.  I’m a woman. A gay woman. A black gay woman.  And, I’m only 28-years-old.  So many blacks and gays and women have fought and toiled so that I could be a black gay woman, without shame or fear, with my entire life ahead of me to go where I please, when I please, and not hesitate to hold my girlfriend’s hand along the way. 

Thinking about all of you, I jotted a quick email to Sasha to ask her if she had plans to address this historical moment on her blog.  I never guessed she’d ask me to chime in.  But, I agreed.  Without a second thought, I sat to craft a few words to convey the importance of what was about to happen… the legal complexity, the social impact, the trajectory that would be set on Tuesday March 26th. More than anything, I want the world to know what it took to get to this moment.  How decades of strategy, timing, and skillful persuasion have led us here. Hopefully, I did just that.  

 So, I’m a lesbian lawyer.  I’m a bit of a novelty.  Girls like that.  “So, what do you do?”  “I’m an attorney.”  “Oh?!”  Every time.  “Oh?!” and their voice goes up at the end as if to say, I didn’t know they made those.  Or rather, it’s just that they didn’t know they made those in this model.  I’m young… and even younger looking.  I have big curly hair.  I wear a lot of skinny jeans and leather jackets.  I drink manhattans.  I’m quick, somewhat brash, polarizing, and undiplomatic… but not to you – you’re “in”.  So when I say I’m an attorney, I know they’re taking a moment to picture the transformation into a suit and heels or how I pull it in to conservatively portray trustworthiness.  Well trust me, I do just fine.  But, I know that’s what they’re thinking.  It’s a line I give on cue at parties because I know exactly how it sounds.  And before they can curiously follow up to ask about my practice or where I studied, trying to make sense of me by cramming me into some box, I’ve already moved on to something or someone else. Truth is, I just don’t fit the mold.  Any mold. But, you’ll see.


On March 26th, the United States Supreme Court will hear oral arguments concerning the constitutionality of Proposition 8, which banned gay marriage in the state of California.  For the very first time, the Supreme Court will consider whether a ban on same-sex marriage violates the US Constitution, and the impact may resonate throughout all fifty states.

 The Journey to Washington D.C.

Proposition 8 is an amendment to the California state Constitution, which passed by popular vote in California to overturn gay marriage rights granted by the California Supreme Court.  In 2000, the people of California voted to restrict marriage to opposite sex couples by passing Proposition 22.  Challenges to the constitutionality of Proposition 22 flooded the courts, and in 2008, the California Supreme Court issued a unanimous ruling that Proposition 22 violated the California State Constitution.

Victory!!  At least, for a few months.  Tens of thousands of gays and lesbians throughout the state, many of whom had been in committed monogamous relationships for decades, rushed to the altar.  They married hastily, knowing that Proposition 8, which would amend the California State Constitution to redefine marriage as the union of opposite sex couples, had been drafted and submitted for vote.  Just months later Proposition 8 passed, and once again, gays were denied validation.

But we fought on.  Perry v. Schwarzenegger was filed in 2009 in a California District Court after two same-sex couples were denied marriage licenses.  They sued Governor Schwarzenegger and Attorney General Jerry Brown of California for denying their right to marry, arguing that refusing to marry same-sex couples violates both the due process and equal protections clauses of the 14th Amendment.  The District Court Judge agreed that denying marriage to same-sex couples was unconstitutional and entered a judgment for Perry and her fiancé.

California officials, Governor Schwarzenegger and Attorney General Brown agreed with the District Court decision.  They too saw the unconstitutionality of Proposition 8 and refused to defend it on appeal.  But the main proponent of Proposition 8, “traditional marriage” advocacy group leader Dennis Hollingsworth, stepped in to appeal the District Court decision in Hollingsworth v. Perry.  An injunction was issued to halt same-sex marriages until all appeals had been exhausted.

Since the District Court decision was entered, not a single reviewing court, Attorney General, Governor, or Solicitor General has supported the proposition which made it illegal for gays to marry in California.  It has been held unconstitutional by every court thus far and has continued its appeal process all the way to the Supreme Court of the United States.

This is BIG

As you all know, whatever rule the Supreme Court returns is law of the land, second only to the Constitution, and binding on each and every court in the nation.  If nothing else, this is BIG… think Brown v. Board of Education (the case deciding that separate but equal is not equal) or Loving v. Virginia (holding that a ban on interracial marriage is unconstitutional) BIG.  And, while usually a case is argued before the Supreme Court by the same lawyers who filed the first issues at the trial court level, this time, minutes have been reserved to hear arguments from the US Solicitor General in support of gay marriage.  This is so BIG!

Here’s why this is so big.  When a law is passed that discriminates against a group, that law may be upheld or struck down depending upon the classification of that group.  During the civil rights movement, the Courts established that some groups are deserving of necessary protections from discriminatory laws because they are marginalized and disenfranchised, or otherwise without recourse through the traditional political process.  Over time and through numerous decisions, the Supreme Court has held that laws that discriminate against “suspect classes” (race, alienage, national origin, and religion) are entitled to the highest standard of review, strict scrutiny, where a state must prove that the law is “necessary to further a compelling state interest” in order to be upheld as constitutional. Laws that discriminate against “intermediate classes” (gender and illegitimate children) are entitled to an intermediate scrutiny, where a state must prove that the discrimination “is substantially related to the furtherance of an important government interest” in order to be upheld as constitutional. Laws that discriminate on most all other bases, including age, disability, and sexual orientation require only a showing that there is a rational basis for the law.  Courts have taken this to mean that a state law will be upheld as constitutional if it discriminates against any group not considered a “suspect” or “intermediate class” if there is any conceivable reason for the law.  And so, without a special classification for gay people, laws forbidding the marriage of gay persons are upheld for any litany of reasons, including: preservation of Christian values, protection of the institution of marriage, corruption of children, administrative costs in granting additional marriage licenses, administrative costs in amending the tax codes, avoiding the slippery slope to bestiality, and other baseless and downright offensive justifications.


So, on Tuesday, the Supreme Court will consider for the very first time whether gay people are an intermediate class worthy of protection from discriminatory laws like Proposition 8 and DOMA.  To decide, the Court will review four considerations: 1) whether gay people have historically been subject to discrimination, 2) whether sexual orientation is a distinguishable characteristic, 3) whether sexual orientation is discernibly manifested, although not necessarily immutable, as alienage and illegitimacy often aren’t, and 4) whether gay people have sufficient political power to protect themselves from wrongful discrimination.

Will you marry… Maybe?

There are FIVE likely outcomes for Hollingsworth v. Perry, and some are less romantic than others.

1. A Constitutional Proposition 8 – The Supreme Court could find that gay people are not an intermediate class, so Proposition 8 need only withstand a rational basis review.  With any rationalization, Proposition 8 will be upheld as constitutional and the ban on gay marriage in California will remain… that is, until the people vote on some later drafted re-amendment of the California Constitution.  Luckily, California’s legal system is peculiar enough that this just may happen.

2. The 8 State Solution – Without deciding whether gays are an intermediate class, the Supreme Court could decide that when any state offers domestic partner benefits that so closely mirror marriage such that the name given the union is the only mark of distinction, like California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island do, there can be no rational basis for denying same-sex couples the right to marry.  Thus, denying same-sex marriage in this limited context is unconstitutional, and same-sex marriage will be mandated in these eight states.

3. The California Only Solution – Without deciding whether gays are an intermediate class, the Supreme Court could decide that when any state legalizes gay marriage and later revokes the right to marry, like California did, there can be no rational basis for denying same-sex marriage.  In this instance, same-sex marriage will be mandated in California only.

4. Dismissed For Lack of Standing – Without deciding whether gays are an intermediate class, the Supreme Court could dismiss the case for lack of standing.  “Standing” is just a fancy legal principle that means the party bringing suit is not the injured party.  For example, if I ran over my neighbor with a car, you couldn’t sue me because you’ve not been injured.  Here, the state of California is the injured party because enforcement of its law has been threatened.  California state officials may represent the state in suit, as Schwarzenegger and Brown did.  However, when they refused to defend Proposition 8 and declined to appeal, Hollingsworth, a private citizen who really believes in “traditional” marriage, intervened and appealed on California’s behalf.  So, the argument goes that he can’t defend California’s interests because, simply put, he’s not California.

If the case is dismissed for lack of standing, the District Court decision that Proposition 8 is unconstitutional will be upheld, but new questions will arise regarding the scope of the injunction against same-sex marriage.  Legal theories suggest a myriad of potential outcomes, including everything from statewide same-sex marriage, to the marriage of the two couples who brought the original suit only.

5. The 50 State Solution – The Fifty State Solution is the solution we are all waiting for with baited breath.  Pause, and breathe.  The Supreme Court could hold that gay people are an intermediate class… that our stigmatized history, that has gay bashed our flamboyance, criminalized our love-making, accused us of corrupting children and spreading disease, and refused to accept the beauty and normalcy of our love IS worthy.  That we are people who have a marred past, deserving of the protections afforded other marginalized minority groups.  That we are a people like any other, and must be treated as such, requiring every law discriminating against gays stand up to intermediate scrutiny… which I believe is an absolute impossibility.  Not only will Proposition 8 be struck down as unconstitutional, but all other laws omitting and marginalizing gays will be under attack with new teeth.  …breathe

On Tuesday, at 10 AM Eastern time, our advocates will stand before the most honored bench in America and demand equality for you and your girlfriend.  They will fight for your right to a certain life-long bond, not a “union” or “partnership”, but a marriage.



In an effort to feed the thirst for information on this historical moment, transcripts and audio of the oral arguments will be released on the same day the oral arguments are heard.  Listen in here:  http://www.oyez.org/cases/2010-2019/2012/2012_12_144

DOMA Going Down?

 March may be the new month of Pride, because the day after the Supreme Court of the United States listens to arguments on the constitutionality of Proposition 8, the Court will hear oral arguments on the constitutionality of the Defense of Marriage Act (DOMA), the law that prohibits the federal government from recognizing same-sex marriages.  Enacted in 1996, the law defines marriage as the union of a man and a woman for federal purposes.  Thus, every federal benefit available to married couples is uniformly denied to legally married same-sex couples.  This includes everything from G.I. benefits to federal tax breaks.

In 2007, New Yorkers Edie Windsor and her partner were finally married after a 40-year engagement.  The wives married in Canada, as New York had not yet legalized same-sex marriage.  In 2009, Edie’s wife passed away, leaving her a significant inheritance.  Under federal tax laws, an inheritance to a surviving spouse is tax exempt.  However, thanks to DOMA, the federal government does not recognize the legal marriages of same-sex couples.  In an unromantic twist, Edie was hit with $363,000 in federal estate taxes on her inheritance from her deceased wife.  So, Edie sued.

The District Court held that the provision of DOMA that prohibits the federal government from recognizing legal same-sex marriages is unconstitutional under the equal protections and due process clauses of the 5th amendment, and the decision was appealed all the way to the Supreme Court.  This case may too be dismissed for lack of standing, because the proper parties, New York state officials, have refused to enforce the law.  However, a favorable decision would rule that all married couples, gay or straight, are married under federal law.

Now THAT is what I call March Madness.

Transcripts and audio of the oral arguments can be accessed here: http://www.oyez.org/cases/2010-2019/2012/2012_12_307



This article has 10 comments

  1. TWolf

    Thank you, Addison for bringing some clarity to a very complicated issue!

    My gf and I have been following the cases closely and are very interested in hearing the audio being released. We will also be joining one of the numerous rallies being held at federal courthouses across the country in support. If anyone is interested, you can find a local rally point at http://www.lighttojustice.org/.

  2. Kara

    Wonderful post Addison!!! Like TWolf mentioned you brought some clarity to a complicated issue
    Thank you so much for writing this 🙂
    Kara XOXO

  3. Natty in Miami

    Thank you so much for providing this detailed explanation. Truly feel informed and ready for the possible outcomes. Really well written.

  4. Alex

    Great contribution. I hope she’s going to be a regular on CCL. Welcome, Addison.

  5. Addison

    Thank you so much for the warm welcome everyone!!

    Did you all get a chance to listen to the arguments? I reserved a conference room at work to listen in with a few folks from the office, and I nearly lost it. This is going to be SUCH a close call. There’s so much speculation about what the outcome will be, but one thing most everyone agrees on is that the entire decision is going to fall on Justice Kennedy, a conservative-moderate, to break the tie.

    All is not lost! Kennedy has authored two of the most pivotal gay rights cases in Supreme Court history: Romer v. Evans, which held unconstitutional a Colorado voter initiative prohibiting the government from extending legal protections to gays and lesbians, and Lawrence v. Texas, which held that sodomy laws were unconstitutional. Not only does this show that Kennedy is somewhat sympathetic to the plight of gays and lesbians, but in both instances, Kennedy put aside stereotypical “conservative” beliefs and applied the law. Done. And, if I could make any prediction, it will be that he will do the same for the Hollingsworth case, declare gays and lesbians an intermediate suspect class, which will give us the coveted 50 state solution!!

    During the arguments, you really get the sense that the Justices DID NOT like the “California Only Solution” or the “Eight State Solution”. They found it counter-intuitive to revoke the rights from states that have attempted to compromise by offering domestic partnerships and posited that forcing such states to enforce marriage equality would ultimately have a chilling effect, discouraging other opposite-sex-marriage-only states from evolving toward domestic partnerships. I have to say I agree.

    Ultimately, my prediction is that we will reach the holy grail, a 50 state solution. And, if the Justices can’t get Kennedy there, they’ll punt – dismissed for lack of standing, which won’t create any prejudicial precedent… and we’ll try for the win again in a couple of years.

  6. Heather

    *fingers crossed*
    It’s been an uphill battle and it is definitely time for some change.

  7. E46FastChick

    As everyone else has stated, thank you for a detailed explanation. This has given me greater understanding of possible outcomes and yes–it brought tears to my eyes when I got to the section on “The 50 State Solution”. I currently live in GA (from TX and been trying to get out of the South and to CA since I came here in 1999…should’ve accepted at Berkley damnit!) and I was supposed to get married in 2011 but did not. Partially because she was not the one for me, but also because when/if I take that step someday, I want to be able to do it the same as anyone else. i want my marriage to be LEGAL. Ours would have just been one very expensive commitment ceremony…cute. The amount of trust, love and vulnerability that it takes to move a relationship to the next level of marriage deserves full recognition and I felt that if I was spending $20,000 on my wedding and doing the damn thing in front of a few I couldn’t stand (ehh, hem her friggin’ sisters and others I sideeye) it very well better be recognized by government! Well I’m being a bit petty here, but it does get my point across.

    Again, thank you for a very well written and thoughtful article that sheds light for the laylezzie as we watch this unfold with bated breath.

    Remembering to BREATHE!

  8. Kirsten

    I have a question:

    Due to the 2009 passing of the Matthew Shepard Act expanding hate crimes to include those motivated by real or perceived sexual orientation (among other things), isn’t the LGBT community considered a protected class?

  9. Addison

    Great question Kirsten!!

    You are absolutely correct that the federal Hate Crimes Prevention Act, expanded by the Matthew Shepard Act in 2009, lists a number of “protected classes,” which include race, national origin, religion, and now sexual orientation. However, more than anything, labeling the groups referenced by the Hate Crimes Prevention Act as “protected classes” is a misnomer or misapplication of legalize.

    The term “protected class” in the Hate Crimes Prevention Act context is not to be confused with the 14th Amendment context. The term “protected class” in the Hate Crimes Prevention Act context refers to an enumerated list of groups that are protected by the Hate Crimes Prevention Act’s provisions. For the purposes of hate crime prosecution, the lgbt community is protected, but that is as far as this classification goes.

    Rather, a group may be deemed a protected class, such as suspect or quasi-suspect/intermediate class for purposes of 14th Amendment Equal Protections by court determination only. So doing means that courts are required to review state conduct which discriminates against members of a protected class with heightened scrutiny. This is the teeth we eagerly await. Far broader than the protections afforded by the Hate Crimes Prevention Act, the 14th Amendment’s equal protections clause makes unconstitutional any state action that discriminates against a protected group without promising or righteous justification (or denies any person a “fundamental right” – another dense batch of rights not to be overlooked). As mentioned, it requires that a judge make a legal finding that a particular group: 1) has historically been subject to discrimination, 2) has a distinguishable characteristic, 3) is discernibly manifested, and 4) lacks sufficient political power to protect themselves from wrongful discrimination. The US Supreme Court has never before considered whether sexual orientation is such a class.

    It is true that some lower courts have already held that sexual orientation is a “protected class,” which may be binding in that particular court’s jurisidiction only. For example, a state’s highest court may have made this determination, such that it becomes binding to all legislation and court holdings in that state only. For all other legislatures and courts, that decision is considered persuasive only, in that it may, but need not, be followed. Alternatively, it may be disregarded entirely or expressly deemed incorrect. Unlike any other court in the country, only the US Supreme Court can give national effect to its determinations, and that is exactly the result we hope for in Hollingsworth v. Perry.

    I hope that answers your question. But, excellent catch!! I like that.

  10. Kirsten

    Thanks for explaining that.

    On a totally unrelated note to the topic: Where did you go to law school and what was it like there? (I ask because I’m waffling about going for my JD and becoming a civil rights attorney.)

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