The battle over gay marriage is shifting from the voting booth to the nation’s highest court. The Supreme Court entered the contentious debate on Friday when it agreed to review California's voter-approved ban on same-sex unions.
The announcement comes as the national climate on marriage equality is rapidly changing. It was only one month ago that voters in Maryland, Maine and Washington made the historic decision to approve marriage equality bills passed by their legislatures. This followed President Barack Obama’s endorsement of marriage equality last May.
“I am hopeful [this] decision will move California and this nation one step closer to truly standing for equal rights for all,” said Congresswoman Barbara Lee (D-Oakland) in a statement to EBONY.com. “As a founding member of the Congressional LGBT Equality Caucus, I have repeatedly spoken against the effort to ban same-sex marriage.”
The Proposition 8 challenge is Hollinsgworth v Perry. The court will also hear a challenge to Section Three of the Defense of Marriage Act, often referred to as “DOMA.” Section Three prohibits federal recognition of legally married same-sex couples and denies more than 1,000 benefits, such as Social Security, pension benefits and preferential tax treatment. Other sections define marriage as between “one man and woman” and allow states not to recognize legally valid same-sex marriages from other states. Those provisions are not being challenged—yet.
The court will also review challenges to affirmative action in hearing education and a key section of the Voting Rights Act. Decisions in all of these cases are expected by June.
“It’s going to be an important term,” says Darryl Moore, a member of the Berkeley City Council and chairman of the National Black Justice Coalition, the nation’s leading civil rights group for the Black lesbian, gay, bisexual and transgender community.
“My partner and I were able to get married before Prop 8 was passed, but [we] want everyone else in California to be able to have that opportunity,” said Moore. “At the same time, I was also hoping that they wouldn’t take it up and we could start marrying people in California next week.”
Same-sex couples were allowed to marry in California during a brief window between June 2008 and November 2008. The Ninth Circuit Court of Appeals has upheld Judge Vaughn Walker's landmark 2010 decision striking down Proposition 8 as unconstitutional. If the Supreme Court declined to hear the Prop 8 challenge, that decision would stand.
But the court also “asked the parties to address whether supporters of Proposition 8 have standing, or the right to defend the measure,” because the State of California has refused to do so, reported the Los Angeles Times.
“That has me concerned, given the conservative nature of the court,” says University of California – Los Angeles Associate Professor of Sociology Mignon Moore. “But now we have nine states that mandate same-sex marriage and hopefully the court will want to be on the right side of history.”
Moore and her wife Elaine Harley have been together almost 11 years and were married last March in New York. “We want our marriage to be recognized like any other marriage,” says Harley. “Voters should not have that power over someone else’s civil rights.”
Dr. Moore has extensively researched Black same-sex couples and is the author of Invisible Families: Gay Identities, Relationships and Motherhood among Black Women. “We are in our communities and have always been in our communities. That’s also what these court cases are about—the visibility of families,” she says. “The South has about 55 percent of the nation’s Black population. These are also the places where Black same-sex households are mostly likely to raise children. These are also the states that they are the least likely to have any legal protections.”
Same-sex couples can now legally marry in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia. The Supreme Court could merely uphold the appeals court ruling—or rule “broadly that Prop 8 and DOMA violate citizens’ fundamental rights, opening the door to same-sex marriage nationwide,” notes the Los Angeles Times.
“I’m a practical person but I also believe in the power of prayer,” said Dr. Moore. “Wouldn’t a [favorable] nationwide ruling be lovely?”
Rod McCullom has written and produced for ABC News, NBC and FOX, and his writing has appeared in EBONY, The Advocate, OUT, The Los Angeles Times and many others. Read his award winning site Rod 2.0. Follow him on Twitter: @RodMcCullom