The United States Supreme Court is set to hear two ground-breaking cases next week involving same-sex marriage, and local Stonewall Bar Association of Tennessee demonstrated its support for marriage equality by joining in filing an amicus brief in one of the cases. Stonewall Bar signed a “friend of the court” brief in Hollingsworth v. Perry, the case challenging the constitutionality of California’s Proposition 8, a state-wide initiative which revoked same-sex couples’ freedom to marry in that state and substituted a domestic partnership law which purports to grant same-sex couples the same rights and benefits as traditional marriage.

“We urge the Supreme Court to strike down Prop 8 as a violation of the Equal Protection Clause of the U.S. Constitution” said Stonewall Bar president Sam Felker. “Essentially we argue that a state cannot single out gay and lesbian citizens and deny them the rights and benefits of marriage that are offered to heterosexual couples.” Seven other states –Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island--also offer similar all-but-marriage frameworks through either domestic partnerships or civil unions. “We argue that a separate but equal system is unconstitutional because there are rights and benefits inherent in traditional marriage that simply cannot be provided through a domestic partnership or civil union. We also point out the substantial economic and emotional harm caused to gay and lesbian couples and their children because of Prop 8’s prohibition on marriage,” said Felker. For example, the brief points out that some health insurance plans provide coverage only to married couples, and the state’s refusal to recognize same-sex marriage stigmatizes and demeans the parents and their children.

The amicus brief, filed by 50 like-minded bar organizations, also argues that laws such as Prop 8 that discriminate based on sexual orientation should be subjected to heightened scrutiny—a more rigorous standard of constitutional review applied for example in racial discrimination cases. If the Court adopted this standard, it would place additional burdens on proponents of Prop 8 to justify the unequal treatment of gays and lesbians. Adopting the standard in this case would also have far-reaching effects in many other discrimination cases and make it easier to strike down all sorts of laws that discriminate based on sexual orientation. The brief argues that because Prop 8 had no purpose or effect other than to mark same-sex couples and their relationships as inferior, it violates federal equal protection under even rational basis review.

The Hollingsworth case it set for oral argument on March 26 and then the next day the Court will hear arguments in the second marriage recognition case, United States v. Windsor, addressing the constitutionality of the Defense of Marriage Act, known as DOMA. DOMA is the 1996 federal law which defined “marriage” as a legal union between a man and a woman and provides that same-sex marriages are not recognized for all federal purposes, including Social Security benefits, taxation, and immigration. Harriet Windsor successfully challenged the law under the Equal Protection Clause of the U.S. Constitution after being assessed a massive estate tax bill upon the death of her long-time spouse, to whom she was legally married under the laws of Canada. If federal law afforded their marriage the same status as heterosexual couples recognized by their states, she would have owed no taxes.

“Legal scholars believe Windsor is a very strong case since there is no legitimate and rational basis for treating legally married same-sex couples differently under federal law,” said Felker. “A favorable ruling would be momentous. Gay and lesbian couples who are legally married in their states could receive federal benefits such as Social Security and be treated like other married couples under immigration and other federal laws.”

The Court is expected to announce its decisions in both cases in June. Most legal scholars agree that the cases are too close to call, although gay and lesbian legal advocates remain optimistic that the Supreme Court will advance the cause of marriage equality. “It has only been 10 short years since the Supreme Court struck down sodomy laws in Lawrence v. Kansas”, said Felker. “We have come a long way in a very short time from a legal perspective and we definitely have the momentum from a public support standpoint.” According to Felker, there are various scenarios and rulings that could impact the rights of gay and lesbian couples in different ways, depending on the state in which they reside and the recognition that state affords same–sex marriages. “Regardless of the rulings in these two cases, it will take a while to sort this out,” said Felker.

Meanwhile, politicians and celebrities are rushing to support the cause of marriage equality. The Obama administration filed amicus briefs supportive of marriage equality in both cases, as did 212 Democratic members of Congress. Most recently, both Hillary and Bill Clinton announced their support for same-sex marriage and urged the Court to rule in favor of marriage equality in these cases. Clint Eastwood even weighed in on the issue, filing an amicus brief urging the Supreme Court to strike down Prop 8.

“This is an exciting time for the cause of marriage equality as we finally get our day in court,” said Felker. “Although Tennessee is far behind the national trend in this area, the Supreme Court rulings could go a long way toward providing rights to married gay and lesbian couples living here. “

On the evening of March 26, following the first day of arguments, The Tennessee Equality Project is hosting a candlelight vigil at Out Central to show support for marriage equality. “I will be glued to the television that day as the pundits and Constitutional scholars dissect the arguments and more importantly the comments by the Justices to try and glean how they are leaning,” said Felker. “Then, my spouse and I will head down to join our friends at Out Central to show our support for changing our nation’s laws to provide true marriage equality for everyone.”

Stonewall Bar is a not-for-profit organization founded in 2010 for the purpose of promoting and encouraging LGBT diversity and equality in the legal profession, providing pro bono assistance in legal disputes involving LGBT individuals and issues, and participating in public dialogue involving issues of importance to the LGBT community. The group’s members include LGBT lawyers, judges, and paralegals, as well as other members of the legal profession who support the group’s mission. The group takes its name from the Stonewall Inn tavern in New York City's Greenwich Village, where demonstrations following a 1969 police raid marked what many see as the beginning of the modern gay civil rights movement.

Sam Felker practices law at Bass Berry & Sims PLC in Nashville, Tennessee and can be reached at 615-742-6219.


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