Supreme Court of the United States contemplates same-sex marriage

Tuesday, March 26, 2013

Supreme Court on Capitol Hill
Image: Ken Hammond.

This week, the United States Supreme Court is scheduled to address two cases before them on the issue of same-sex marriage. The federal Defense of Marriage Act case is scheduled to be heard on Wednesday. The other case involves California's Proposition 8. A ruling is unlikely to be made until June.

The federal case involves the denial of privileges afforded to heterosexual married couples on the federal level, and the legality of states to opt out of recognizing legal marriages performed in other states in the union and to deny state benefits for those couples.

Associate Justice Anthony Kennedy, potential swing vote on the Supreme Court
Image: Steve Petteway.

John Eastman, law professor at Chapman University and chairman of National Organization for Marriage, a group that opposes same-sex marriage, believes the eventual ruling will be a close one, with Associate Justice Anthony Kennedy likely to be the key swing vote. Eastman is quoted by U.S. News and World Report as saying of Kennedy, "All eyes are on Justice Kennedy and he's obviously written the two major gay rights decisions in the past decade and a half and that means that people rightly think that he's kind of open to taking this step, but he has studiously avoided taking that step in prior cases." Other court watchers agree with this sentiment.

In the lead up to the hearings, a number of high profile politicians have expressed their support for same-sex marriage including Democratic Senator Mark Warner of Virginia, Democratic Senator Claire McCaskill of Missouri, former Secretary of State Hillary Rodham Clinton and Republican Senator Rob Portman of Ohio. Earlier this month, 40 United States senators signed a legal brief arguing against the constitutionality of the federal Defense of Marriage Act that was submitted to the Supreme Court.

High visibility companies have also indicated support for legalized same-sex marriage in the United States, including Starbucks where CEO Howard Schultz gave company support at a share-holder meeting last week. After share-holder Tom Strobhar implied at the meeting that Starbuck's historical position of supporting same-sex marriage, which included open support of the same-sex marriage legalization efforts in the state of Washington last year, hurt the company's bottom line, Schultz responded by saying, "If you feel, respectfully, that you can get a higher return than the 38% you got last year, it’s a free country. You can sell your shares of Starbucks and buy shares in another company." The company's position is predicated on respecting diversity, even if it potentially impacts Starbucks earnings.

Goldman Sachs has also supported the push for same-sex marriage arguing that the lack of equality hurts businesses. Goldman Sachs, Marriott International and Thomson Reuters have all signed a legal brief condemning the federal Defense of Marriage Act.

Protesters gathered inside the state capitol building in St. Paul, Minnesota, to protest against the upcoming vote by the Minnesota House of Representatives to put an anti-same-sex marriage amendment on the 2012 election ballot.
Image: Fibonacci Blue.

A Washington Post-ABC News poll published last week showed support for same-sex marriage in the United States was at an all time high at 58%, an increase of 21% since 2003. A recent Gallup poll showed similar results, with 54% of Americans supporting federal benefits for gay and lesbian couples, an increase of 27% since 1996 when the federal Defense of Marriage Act became law. Last week, a poll published by Reuters/Ipso found 63% of Americans supported same-sex marriage or civil unions. Despite this, social conservatives argue that this support may be over-stated by as much as 7% when voters are asked to voice their opinion on the issue at the ballot box. They cite a 2010 study by New York University political science professor Patrick J. Egan. Social conservatives also argue that people lie to pollsters to avoid appearing intolerant. 2000 Republican presidential candidate Gary Bauer said on Fox News Sunday, "I’m not worried about [same-sex marriage], because the polls are skewed. Just this past November, four states, very liberal states, voted on this issue and my side lost all four of those votes. But my side had 45, 46 percent of the vote in all four of those liberal states." Brian S. Brown, president of the National Organization for Marriage, also argues that misleading polling questions over-count support for same-sex marriage in the United States.

Despite the potential for skewed polling, the four most recent ballot initiatives regarding same-sex marriage in the United States on a state level resulted in citizens voting to support same-sex marriage in Minnesota, Maryland, Washington and Maine. It also comes at a time when the most recent election cycle in the United States saw opponents of same-sex marriage outspent 3 to 1.