Scott Englert, Politics Editor
Nate Balmert, Staff Writer
Oral arguments for two cases regarding same sex marriage began last week in the Supreme Court of the United States (SCOTUS).
The first, Hollingsworth v. Perry, concerns California’s constitutional amendment Proposition 8 (Prop 8). Prop 8 was passed in California in 2008 by 52.24 percent of the popular vote. The ballot measure defined marriage in the state constitution as the union between a man and a woman, though same sex couples already married could remain married. Previously, in 2000, voters had defined marriage similarly; however, that law was struck down by the state’s Supreme Court in 2008, prompting the Prop 8 vote.
In California, individuals possess the right to civil unions, which provide many of the legal benefits and protections of marriage. The law, however, remains controversial. After being struck down by a California federal judge in 2010, the law’s legality will soon be decided by SCOTUS.
Much of the debate has focused on the legal standing of the involved individuals. The California state government has refused to defend Proposition 8 in federal court, so individuals have taken it upon themselves to defend the law on behalf of the people in California. Notably, California offers some of the most comprehensive domestic partnership laws to be found in the US; a 1999 law explicitly affords the same rights, protections and benefits to domestic partners that married spouses possess.
The second case being heard by SCOTUS, United States v. Windsor, addresses the 1996 Defense of Marriage Act (DOMA), section 3 of which defines marriage as “a legal union between one man and one woman as husband and wife” and spouse as “a person of the opposite sex who is a husband or a wife.” In June 2012, the Southern District Court of New York ruled the act to be unconstitutional. The Department of Justice filed an appeal notice shortly thereafter, and now the case is being heard by the highest court in the land. The case was originally brought to the US District Court for the Southern District of New York’s by Edith Windsor, who was required to pay more than $363,000 in federal estate taxes on inheritance of her wife’s estate upon the latter’s death. Federal law does not currently accord the same legal benefits to same sex couples and opposite sex couples in states where the former is legally recognized, such as New York. If it did, Windsor would not have paid a cent of inheritance tax,
Those in opposition to Prop 8 and DOMA argue that under the Fifth Amendment’s guarantee of equal protection, the federal government ought to accord the same legal recognition to same sex married couples that those couples enjoy under their state constitutions; concurrently, they believe that the current language in section 3 of DOMA creates a “separate but equal” legal situation comparable to pre-Civil War laws mandating separate arrangements for African-American citizens.
The debate surrounding same-sex marriage has become one of the most hot-button issues of the day, especially for young people and is especially evident on Facebook. Proponents have expressed their support for marriage equality by posting pictures of red equal signs, while those who support traditional marriage have responded with crosses or plus signs, indicating the union of man and a woman. According to recent polls, the majority of college-age students support gay marriage, believing that equality is the fundamental issue.
The Rover garnered responses from the Notre Dame student body on the issue.
Senior George Alcorn remarked, “I think same sex marriage should be legal. People in same sex couples deserve the same benefits enjoyed by people in traditional marriages.”
Alcorn is also confident that regardless of the Supreme Court’s upcoming ruling, same-sex marriage is inevitable: “From what I can tell, a lot of people my age don’t care as much about excluding gays from marrying. So even if Prop 8 is upheld, it’s only a matter of time until gay marriage is legalized.”
Yet, some students remain hesitant in offering their full support. Andrew Wieging expressed his beliefs thus.
“My stance on the legalization of gay marriage is somewhat complex, leaning away from [supporting] it,” he said. “That being said, I do not begrudge anyone their right to pursue happiness and would like to help them. Maybe my view is becoming a little old fashioned (and I hope that it’s not), but I still believe that marriage should be a covenant between a man and a woman.”
Such sentiments are often alleged to stem from religious motivations. Wieging elaborated upon his statement, “the area of my disagreement stems more from my notion that marriage should be a sacred pact sanctioned by a valid, non-cult-like religious entity, entered into freely by both participants instead of being sanctioned by the government.”
While some students focused on the role government should play in the public promotion of marriage, Senior Victoria Anglin stated that ideally the “government should not have a hand in marriage—for heterosexuals or homosexuals.”
In elaboration, Anglin explained how in present circumstances she supports marriage being extended to same-sex couples.
“I am of the opinion that marriage is an institution in which the state should not be involved,” she said, “however, given that the state is involved, the real benefits being garnered by heterosexual married couples should be accessible to all married couples.”
Wieging added, “the government’s involvement, to me, seems primarily due to the need for establishing a legal structure for couples concerning taxation and property, among other things. I have no problem with having same sex couples having the same standing as traditional married couples, with respect to legal status. If they wish to form a domestic partnership, it will happen regardless of the government legalizing gay marriage.”
As previously mentioned, the Supreme Court has already heard oral arguments for both cases. For those unfamiliar with the Supreme Court’s docket selection, generally speaking, four of the nine justices must vote to hear a case for it to be heard by the Court. Previously, many believed that the Court’s liberal bloc—Justices Breyer, Ginsburg, Kagan and Sotomayor—voted to hear the cases thinking that they could convince the Court’s swing vote—Justice Kennedy—to side with them. But the conservative Judge Scalia also recently expressed his pleasure that the Court is hearing the case. He and other conservatives on the Supreme Court are thought to believe that given the issue’s public relevance, now is the ideal time to rule on same-sex marriage.
Regardless of the justices’ motivations, the two Supreme Court decisions will be controversial and impact millions of people—and the institution of marriage—in powerful ways.
Nathaniel Balmert and Scott Englert are two soon-to-be Notre Dame graduates keeping informed with the same-sex marriage issue. Are you? Please let them know at nbalmert@nd.edu or senglert@nd.edu.
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