Marriage in the Balance

Several very different marriage court cases are headed to the Supreme Court — but not all are likely to go our way.



The four plaintiffs whose case brought down Proposition 8 in California — Sandra Stier, Kristin Perry, Paul Katami, and Jeff Zarrillo.


So Then What?
The court will probably hear arguments in January or February. In June we’ll probably find out where we stand.

If the court knocks down DOMA’s section 3, break out the champagne and the confetti: We’re nearly home. The news media will trumpet the victory, more politicians and companies will feel secure coming around to our side, and more individuals’ minds will be changed as they see how little changes when same-sex couples are treated fairly. Tens of thousands of same-sex couples in marriage-equality states will be married not just in their home states but also in the United States, saving them money and trouble. Couples from antimarriage states who travel to marry in, say, Iowa will now face the inverse conundrum: They will be married in the United States but not in Kansas or North Carolina. Their families, friends, and employers will start to take the issue personally as they deal with marriage inequality not just as an abstraction but as a daily dilemma for real, human families.

As Evan Wolfson, founding director of Freedom to Marry, puts it, “If we win, I think it’s a death blow to DOMA. It puts the federal government on the side of the families. It gives us more momentum. It puts some legal and political pressure on the recalcitrant states — and gives people throughout the country an actual opportunity to see real people and think in concrete terms about what the discrimination looks like. And in the same way that the president’s endorsement of the freedom to marry didn’t legally change anything, culturally, a Supreme Court decision putting its imprimatur on our side has tremendous power.”

And if we lose? “Well, that sucks,” says James Esseks of the ACLU. “But we pick ourselves up and we push the Respect for Marriage Act.” After all, the bill, which would repeal DOMA, already has 154 cosponsors in the House of Representatives and 32 in the Senate, or roughly a third of Congress. Wolfson points out that DOMA “has been repudiated by the member of Congress who wrote it and by the president who signed it. The country’s support for the freedom to marry has doubled since 1996, from 27% to, now 54%.” Esseks adds, “The repeal of ‘don’t ask, don’t tell’ showed us that we can move big, difficult pieces of LGBT rights legislation that get rid of de jure discrimination against us. It would be easier for the Supreme Court to take care of it, but we can pass that. If we have to, we will.”

As he always does, Wolfson points out that either way, the LGBT movement just keeps doing what it’s already doing. “We continue working with Congress to build support for the Respect for Marriage Act and we continue winning more states. It won’t stop what we’re doing or our progress. It will just keep us from leaping ahead.” In fact, he suggests that a loss might shock more heterosexual allies into working on our behalf. Either way, he says, what the courts do is out of our control. “The best thing we can do to win is not to sit reading hand-wringing analyses but to go out and get critical mass of public opinion on our side. That’s what creates the climate that empowers and emboldens the court to do the right thing. While lawyers like Mary Bonauto [GLAD’s civil rights director] do everything they can in the court, we have to do everything we can outside it.”

E.J. Graff is a daily columnist at The American Prospect, a senior fellow at Brandeis University’s Schuster Institute for Investigative Journalism, and author of the book What Is Marriage For? The Strange Social History of Our Most Intimate Institution (Beacon Press, 1999).