Straight Talk
on
Gay Marriage
What Do We Mean By Marriage?
The legal union of a couple
as husband and wife
- Black's Law Dictionary 8th Edition
Declared a “fundamental right”
by the Supreme Court as
early as 1888.
- Maynard v. Hill, 125 US 190

The legal status of “married” has
a lot of collateral effects:

Joint liability for debts

Mutual support
obligations

Property rights

Survivor benefits &
intestate succession

Immunity from
subpoena against a
spouse

Visitation rights in jails,
prisons, & hospitals

Military communication
rights & death
notifications
The Arguments:
In Favor
Against



Equal Protection
Traditional definition of marriage
Combats 2nd class treatment of LGBT
citizens
Weakens the institution of marriage
“Traditional” marriage is a myth – legal
marriage changes over time
Slippery slope to polygamy, incest,
bestiality, etc.
Incompatibility with religious beliefs

Facilitates gay adoption

Stabilizes gay families
Requires opponents' tax dollars to support
the institution
Protects hospital visitation & end-of-life
care decisions
Children need to be raised by a mother
and a father
Marriage is about commitment not
procreation
Assimilates gays into mainstream culture,
eliminating their vibrant counter-culture

Full Faith & Credit
Marriage is about procreation

Freedom of Religion

Does not threaten straight marriage
Marriage is a religious sacrament, not a
right


Current State Laws
Image source: http://www.freedomtomarry.org/states/
California's Proposition 8
“Only marriage between a man and a woman is
valid or recognized in California.”
Nov. 4, 2008


5/26/2009 upheld by
State Supreme Court
8/4/2010 struck down by
US District Court

Challenged on Federal
14th Amendment grounds
of Due Process and Equal
Protection
2/7/2012 US 9th Circuit
Court of Appeals affirms
Certiorari
Granted
12/7/2012
Courts' Decisions on
California's Proposition 8

District Court: (Broad decision)

Prop 8 cannot survive rational basis scrutiny on equal
protection issue



Primary purpose of the law is to label same-sex relationships as
inferior
Fundamental Right to marry applies to same-sex marriage
Circuit Court: (Narrow decision)

Prop 8 unconstitutionally takes away an existing right
without a legitimate reason


Distinguishes taking away a previously given right and requiring
the creation of a new right
Prop 8 cannot survive rational basis because it doesn't
change substantial rights in keeping with state interests
alleged
The Defense of Marriage Act


Marriage is defined as 1 man and 1 woman for all
federal laws
States are not required to give effect to other states'
same-sex marriages
Sept. 21, 1996


2/23/2011 Obama orders DOJ
not to defend DOMA Bipartisan Legal Advisory
Group of the United States
House of Representatives
("BLAG") hires private lawyers
to take up the slack
9/9/2012 Obama lends his
personal support to gay
marriage
Windsor v. US







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1963 Edith Windsor & Thea Spyer meet
1993 They register as domestic partners in New York
2007 They marry in Canada
2/2009 Spyer dies due to MS, IRS taxes Windsor's
inheritance as a stranger for $363,053
11/9/2010 Windsor files lawsuit based on Equal
Protection Grounds
6/6/2012 District Court strikes down DOMA as
unconstitutional
10/18/2012 Court of Appeals rules DOMA
unconstitutional
12/7/2012 Supreme Court grants certiorari
District Court said there was no rational basis for the law
The Issue: Can the Federal Government constitutionally define what
marriage is?
Circuit Court applies heightened “intermediate” scrutiny due to a
history of discrimination and powerlessness among gays
Defenses do not survive intermediate scrutiny
Image Source: http://www.aclu.org/lgbt-rights/windsor-v-united-states-thea-edie-doma
Possible Supreme Court Outcomes

The Court protects the rights of
all citizens to marry

The Court upholds states' rights
to regulate marriage

Prop 8 is struck down
under Equal Protection
& Due Process

Prop 8 is upheld based
on a rational state
interest

DOMA is struck down
under Equal Protection

DOMA is upheld as
protecting states'
autonomy
Image Source: http://www.wired.com/images_blogs/threatlevel/2012/06/supreme-court2.jpeg
Possible Implications of Ruling
For Gay Marriage or Against


The Court recognizes gays and
lesbians as a protected class
(Both)
All state constitutional and statutory
gay marriage bans are invalidated
(Prop 8)






Gay marriages qualify for full
benefits under federal law (DOMA)
States may not take away gay
marriage once it has been granted
(Prop 8)
States can still ban gay marriage
but must recognize marriages
performed elsewhere (DOMA)


The Court finds there is a rational
basis to support treating gay
marriage differently (Both)
States have the specific authority
to define marriage (Prop 8)
States may refuse to recognize gay
marriages performed elsewhere
(DOMA)
Federal government may limit
benefits awarded to gay marriage
(DOMA)
States may not pass new statutes
or constitutional amendments, but
old ones stand (Prop 8)
Questions?
Civil Rights ● Family ● Criminal
248-764-8584 www.schmidtlawservices.com