How the Overturn of DOMA Will Affect Midwest Couples

Despite a flurry of activity in early 2013 at both state and federal levels, sweeping changes that guarantee marriage rights to the LGBTQ community are unlikely in the near future, according to panelists at a briefing held on Apr. 18 at the Center on Halsted. More than 100 people gathered for the event, co-sponsored by the Center's Young Leader Board, Lambda Legal and the Human Rights Campaign (HRC).

The panel discussion featured Alexander Boni-Saenz, Lecturer in Law at the University of Chicago, and Christopher Clark, Senior Staff Attorney at Lambda Legal with moderator Brian Mustanski, Director of the IMPACT LGBT Health and Development Program at Northwestern University.

Mustanski opened the evening with brief remarks on marriage equality as a health issue.

"The research is clear: Institutional discrimination deprives our community of opportunities and resources," said Mustanski. "Debate and voting on the issue has broader health impacts related to minority stress and identity concealment. In states that have voted on anti-equality measures, LGBT people show a clear decline in mental health, increased alcohol abuse, increased mood disorders and a decline in medical visits."

Boni-Saenz summarized the two cases before the U.S. Supreme Court (SCOTUS), one relating to California's Proposition 8 and the other dealing with the federal Defense of Marriage Act (DOMA). In both cases, Boni-Saenz sees the most likely outcome to be narrow rulings with limited, though positive, impact for some LGBT couples.

"I think [the Prop 8 case] will be dismissed on standing. Essentially on the grounds of no specific injury [to the four parties who petitioned to intervene in defense of the 2008 California ballot initiative]," said Boni-Saenz.

This would benefit California couples by backing the District Court ruling that Prop 8 is unconstitutional, but would have no impact beyond the state. If SCOTUS were to decide the case on merits, Boni-Saenz still sees limited impact.

"It's unlikely that there are five votes for a broad ruling either for or against marriage rights. [It is possible] the court will rule that a state cannot grant rights and take them away, which would apply to California only and set a very limited precedent," said Boni-Saenz.

He added that another narrow ruling might result in the so-called "eight-state solution," which would require states recognizing civil unions to recognize same-sex marriages.

In response to an audience question as to why SCOTUS would have agreed to take the case, only to dismiss or issue such a narrow ruling, Boni-Saenz explained that it is likely the conservative wing of the court agreed to hear the cases.

"Only four justices have to agree to hear a case," said Boni-Saenz. "The fact that in arguments, Justice Kennedy questioned whether [the Court] should have heard this case and Justice Scalia angrily replied 'yes' suggests that this is a dodge and delay tactic."

Clark echoed this hypothesis.

"Justice Kennedy seems unwilling to stop the momentum [in favor of marriage equality]. He seems to be looking for reasons to kick the case out," said Clark.

Boni-Saenz described SCOTUS as "more enthusiastic" about the DOMA case.

"Justice Kagan has raised the question of animus or whether DOMA represents Congress making a collective moral judgment [on the LGBT] community," Boni-Saenz noted.

This introduces the possibility of a precedent for "heightened scrutiny" in cases involving sexual orientation. Traditionally, sex and race have met the criteria for a legal distinction based on an obvious, unchangeable characteristic distinguishing a minority group that is politically powerless. The Court has never applied this based on sexual orientation.

"That's one thing at stake, but a distinction based on orientation is unlikely to merit it. The votes are not there for us and the other side doesn't want to go there," said Clark. "Justice Roberts countered Kagan's arguments saying that people are falling all over themselves to endorse our position, which of course ignores a history of discrimination."

"The court has not added a new class for decades," added Boni-Saenz.

Although the DOMA case is likely to be decided on merits, Boni-Saenz and Clark anticipated a narrow ruling with limited impact.

"I think it's likely the Court will issue a narrow ruling on federalism, which questions whether the federal government has the power to define marriage. Justices Kennedy and Roberts seem interested in this line of argument," Boni-Saenz noted.

In this event, access to any given federal benefit for LGBT couples would be determined by a complicated equation of the couple's state of residence, the state of celebration of their marriage and the program they are trying to access.

"There's a mishmash of regulatory regimes. Justice Ginsburg has referred to this as 'skim-milk' marriage," said Boni-Saenz.

"I think Lambda Legal will be very busy," joked Clark about the impact of a narrow Federalist ruling.

Given the likely outcomes at the federal level, Clark emphasized the continued importance of state-level initiatives.

"It's unlikely that Illinois LGBT couples will be afforded marriage equality by the federal government. It's important that we push forward," Clark explained.

Although SCOTUS rulings are anticipated in June, judicial challenges in Illinois are in the early stages. Meanwhile, both the legal teams and the plaintiffs represented by Lambda and ACLU Illinois in cases challenging the Illinois DOMA have been involved in legislative efforts, testifying before both Illinois Senate and House committees on legislation awaiting a vote in the General Assembly.

"We need 60 votes and we hope to have them soon," said Clark.

Both Boni-Saenz and Clark emphasized that both federal and state challenges are set against a backdrop of public opinion that is shifting quickly in favor of marriage equality.

"Time will bring overwhelming favor for marriage equality. The speed of progress here really distinguishes our cause and these Court decisions won't change that," said Clark.