Season Preview: Lesbian and Gay Rights at the Supreme Court—Part 1

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September 17, 2012
Jon W. Davidson, Legal Director of Lambda Legal

A new term is about to begin at the U.S. Supreme Court, and it could be a blockbuster one for lesbian and gay rights. We eagerly await word on whether the Court will consider one or more of several cases currently presented to them for review that involve the rights of same-sex couples.

In its history, the Supreme Court has only decided about a dozen gay rights cases, so any of the pending cases it reviews this term will likely be important in the development of sexual orientation law. Just how significant that will be will depend on which case or cases the Court decides to hear, which issues it reaches and, of course, the final outcome. But with so many important cases ready for review, this year is sure to be a historic one on the path toward equality for the lesbian and gay community.

Here’s the first part of a three-part preview:

DOMA Challenges

Section 3 of the so-called Defense of Marriage Act (DOMA) forces the federal government to deny recognition to the legally-valid marriages of same-sex couples. This discriminatory law mandates unequal treatment of same-sex, married couples in every program of the federal government, including Social Security, veterans’ benefits, health coverage for federal employees’ families, federal taxes and tax protections, and immigration.

There are four separate cases that ask the Supreme Court to strike down DOMA Section 3 arguing that it violates the Constitution: Lambda Legal brought one of the cases, Golinski v. Office of Personnel Management, on behalf of a lesbian federal employee in California who was denied spousal health insurance coverage that her heterosexual co-workers receive. Two DOMA cases were brought by Gay & Lesbian Advocates and Defenders (GLAD)—Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management—and a fourth case, Windsor v. United States, was brought by the ACLU. Any one or more of these cases could be granted review by the Court this year.

In the DOMA cases, Lambda Legal and the other LGBT legal groups are arguing that such discrimination by the federal government is unconstitutional. We are also urging the Court to make clear that judges should apply “heightened scrutiny” when reviewing any law, like DOMA, that treats people differently based on their sexual orientation, putting the burden on the defenders of the unequal treatment to prove it necessary to further an important government interest.

If review is granted, we think the likelihood of Section 3 of DOMA being struck down is quite high. The last five courts to review Section 3 of DOMA have all held it unconstitutional. And in a recent survey of constitutional law professors, 69 percent who responded concluded that Section 3 of DOMA is unconstitutional.

Next: Part 2—The Prop 8 Case