On Friday, Dec. 7, the U.S. Supreme Court announced its intentions to review the constitutionality of the Defense of Marriage Act and Proposition 8.
The Defense of Marriage Act, enacted in 1996 by President Bill Clinton, is famous for its law in regarding that the marriage of same-sex couples in one state does not have to be honored in another state. Under the Defense of Marriage Act, a marriage in the state of Iowa between a same-sex couple does not mean the marriage will be honored in states that choose not to recognize same-sex marriage.
Currently, there are nine states that allow same-sex marriage in addition to the District of Columbia. Likewise, there are 31 states that have constitutional amendments in their state constitutions banning same-sex marriage.
Proposition 8 was the people of California’s attempt to overturn the California Supreme Court’s ruling on the banning of gay marriage in the state. Passed during the November 2008 elections, California passed Proposition 8 into their state constitution with a vote of 52.24 percent, a little over 7 million votes.
Both Defense of Marriage Act and Proposition 8 will be reviewed by the U.S. Supreme Court for its constitutionality. The U.S. Supreme Court’s session is between October and June. So it is believed that the U.S. Supreme Court will make the decision by the end of the session in June after hearing oral arguments, which are predicted to begin in March.
Dirk Deam, senior lecturer in political science, said that if the U.S. Supreme Court agrees with the 9th Circuit Court of Appeals and the federal court that oversees the state of California in addition to eight other states, then same-sex marriage will be legal in all 50 states as federal law.
Each decision made by the U.S. Supreme Court is seen as constitutional law; thus, if the U.S. Supreme Court finds the ban of same-sex marriage unconstitutional, then the decision is seen as federal law.
If the U.S. Supreme Court decides to overturn the ban of same-sex marriage as unconstitutional, then the decision will affect all 50 states because the U.S. Constitution defines the Supreme Court’s decision as the “supreme law of the land” as stated in Section 4, Article VI of the U.S. Constitution.
However, if the U.S. Supreme Court does not rule the Defense of Marriage Act or Proposition 8 as unconstitutional, then the decision of same-sex marriage will be left up to the states to decide.
Deam explained that the U.S. Supreme Court can look at the case by viewing homosexuals as a suspect class, a group of people who have been traditionally discriminated against, or by invoking the right to privacy, marriage and procreation.
If the U.S. Supreme Court treats homosexuals as a group of people who have been discriminated against by law, then the court will treat the case with special consideration. Deam stated that sexual preference has not traditionally been considered a suspect class, but some states, such as Iowa, have treated homosexuals as a suspect class. The classical example of a suspect class is race and ethnicity.
One of the most famous cases that considers privacy as a fundamental right is Roe v. Wade (1973), which ruled abortion as being the privacy issue of a woman. Extended to same-sex marriage, the argument would be that the issue of marriage is private between the parties wishing to be married.
“In many ways, I do see this compared this to the 1967 supreme court case of Loving v. Virginia in which the Supreme Court struck down laws in a number of Southern states outlawing sexual relationships between people of different races,” said Warren Blumenfeld, associate professor of the School of Education, who teaches queer studies classes at Iowa State. “It hopefully will end the debate on whether or not same-sex couples will have the same rights as different-sex couples to marry.”
Blumenfeld was grading papers for his multicultural class when he said his phone and email blew up with news of the U.S. Supreme Court reviewing the Defense of Marriage Act and Proposition 8. Blumenfeld said he hopes that the case will give recognition and publicity to gay rights and issues.
A common misconception about same-sex marriage is that laws regarding same-sex marriage occur because of the “right” of same-sex couples to be married. The 14th Amendment is often cited as the reason why some state constitutions overturn the ban of same-sax marriage as unconstitutional marriage.
The Equal Protection Clause of the 14th Amendment states that the rights of one group of people cannot be denied the same rights and privileges of another group. Thus, same-sex marriage is not legalized due to a person’s right to be married to someone of the same sex, but from it being unconstitutional to ban the marriage of same-sex couples according to some state constitutions.
Blumenfeld said he is “cautiously optimistic” about the Defense of Marriage Act and Proposition 8 reaching the U.S. Supreme Court.
“I believe even some of the more conservative justices on the Supreme Court understand and follow the Constitution,” Blumenfeld said. “Therefore, I believe they as well will vote for marriage equality.”
Family Leader, an organization with a platform opposing same-sex marriage, has been contacted for comment but could not be reached.