2012 was a banner year for LGBT rights. Same-sex marriage was legalized in Washington State in February and couples won the right to marry in Maryland and Maine by way of ballot referendums in November. Minnesota voters struck down a proposed amendment that would ban same-sex marriage in that state. President Barack Obama came out in support of same-sex marriage.
Courts in the First, Ninth and Second circuits struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. Openly gay legislators were elected in local and federal elections. There were many more milestone moments — too many to mention in this space.
What is the forecast for 2013? It promises to be another banner year.
The U.S. Supreme Court has agreed to review two notable cases. The first is the decision by the U.S. Court of Appeals for the Ninth Circuit (Perry v. Brown) that struck down Proposition 8, a 2008 measure banning gay marriage in California. The Ninth Circuit ruled that the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.
While the U.S. Supreme Court has agreed to review the full scope of the challenge, Perry also dealt with the narrow issue of whether Proposition 8′s defenders have standing to sue when the governor and attorney general refuse to defend the law in court. If the justices find that they did lack standing to sue, the decision would not directly void California’s constitutional provision banning same-sex marriage. In effect, such a decision could serve to permit resumption of same-sex marriages in California without ever examining DOMA. If the Supreme Court had declined to review the case, same-sex marriages would already be allowed to resume in California.
The Supreme Court will also consider the Second Circuit decision in Windsor v. United States, which deals with DOMA directly. The central issue is whether Congress is permitted to deprive legally married same-sex couples of federal benefits otherwise available to opposite-sex married couples. Section 3 of DOMA limits health and pension benefits, as well as favorable tax treatment, to heterosexual couples.
Edith Windsor and her partner, Thea, lived as a committed couple for 44 years. They were legally married in Canada in 2007. Thea died in 2009. Normally, the designation of a couple as legally married for purposes of the federal estate tax marital deduction depends solely on their being validly married under state law. Even though New York recognized their marriage, DOMA barred the marriage from being recognized by the federal government. Edith Windsor was forced to pay a $363,000 federal estate tax bill that would have been $0 if she had been married to a man — or if DOMA were not in place and her existing marriage had been recognized. Due to failing health and advanced age, Windsor petitioned the Supreme Court for certiorari before the Second Circuit had ruled.
Handicapping The Vote
It is thought that Justices Samuel Alito, Antonin Scalia and Clarence Thomas will vote against same-sex marriage while Justices Breyer, Ginsberg and Sotomayor will likely vote for same-sex marriage. The swing vote is likely to come from either Chief Justice John Roberts or Justice Anthony Kennedy.
Same-sex marriage is already legal in nine states: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. In 2013 same-sex marriage may become a reality in at least two or three other states, most likely, Illinois, Rhode Island or New Jersey.
Last year, New Jersey’s legislators passed a gay marriage bill only to have it vetoed by the Republican governor. Depending on the outcome of the Supreme Court cases, the issue may appear on this year’s ballot in New Jersey.
A bill to legalize same-sex marriage in Illinois passed the Senate on Jan. 3, 2013 and is scheduled for a vote in the House. If the bill passes, Illinois is poised to become the 10th state to allow same-sex marriage. Civil unions became legal in that state in 2011.
Also on Jan. 3, Rhode Island lawmakers introduced a gay marriage bill. If it passes the state Senate, Rhode Island may well become the final New England state to legalize same-sex marriage.
2013 is destined to become another banner year for LGBT rights. While this article has focused on the gay marriage issue and the DOMA cases, there are other cases pending that deal with a variety of LGBT issues. Activists will continue to fight for the basic human rights long denied to LGBT citizens. As public support continues to increase for equality issues in general, it is likely that we will see many advances in the area of LGBT rights. •