To Donald A. Licht, the Supreme Court arguments this week on its first-ever gay marriage cases are not just about equal rights and fairness.
They’re about whether he will be able to live through retirement without going broke.
The federal government refuses to recognize Licht’s marriage to his late partner. That means Licht is losing out on about $2,000 a month in Social Security survivor’s benefits that any similarly situated straight widow or widower would get.
“I have to take additional money out of our retirement savings every month,” the 65-year-old Buffalo man said. “Down the line, that means my retirement savings will not last as long as I am alive.”
It’s all because gay marriages that are made in New York, or performed elsewhere but recognized by the state, mean nothing to the federal government.
Gay married couples also can’t file joint federal tax returns, they can’t share in the same federal health plan, and they still get hit with federal estate taxes after one of the two partners passes away.
But all that could change when the high court rules, probably in June, in the two cases it will hear this week.
While the justices could issue limited rulings with little national impact, they also could find a constitutional right to gay marriage.
Or, more narrowly, they could strike down the federal Defense of Marriage Act, which stands in the way of gays enjoying the same federal benefits as straight couples.
Those last two possibilities deeply disturb Pastor William Gillison of Mount Olive Baptist Church in Buffalo, who fears that any such ruling could spawn more court action that might end up forcing churches such as his to perform same-sex weddings that run counter to their faith.
“I can see it happening,” said Gillison, whose church currently enjoys an exemption in state law that allows churches to refuse to perform such unions on religious grounds. “Once [gay marriage] is established in the law and accepted by the public one way or another, then all it takes is someone to bring a case and argue that the church’s exemption is not constitutional. Will it happen? As sure as the light of day.”
Much is uncertain, though, as the Supreme Court prepares to hear arguments Tuesday in a case on whether California voters could vote to ban gay marriage and on a separate case Wednesday on the Defense of Marriage Act.
But what’s most striking now is the vast difference between the real-world arguments put forth by people like Licht and Gillison, and the much more complex legal logic that the justices will contend with.
To Licht – who, with his partner, James D. Haynes, was one of Buffalo’s gay rights pioneers four decades ago – a federal right to gay marriage is a natural extension of what this country’s all about.
“The Constitution was set up to make everybody equal,” said Licht, who married Haynes in Ontario in 2007, a year before his partner died. “But when benefits are denied to people just because of their sexuality, that makes them less equal than other people.”
To Gillison, though, Christian doctrine is clear: Marriage is an institution made for one man and one woman, and what’s more, it’s the basis of family and society. Gillison doesn’t like individuals or legislatures or courts tinkering with that, and he’s not especially worried about the fairness issue that Licht raises.
“It’s part of the cost of the decision [gay couples] have made in order to establish a relationship,” he said, adding: “There will always be certain benefits in society that I’m not eligible for, either.”
Far removed from that human argument, the nine justices will consider two similar but separate gay marriage cases.
The first, to be argued Tuesday, is Hollingsworth v. Perry, in which the court will consider the constitutionality of Proposition 8, a referendum California voters passed in 2008 that overturned state court rulings and banned gay marriage in that state.
To supporters of gay rights, that flat-out ban is a clear violation of the Constitution’s 14th Amendment, which forces states to offer all their residents equal protection under the law.
“Proposition 8 codifies the second-class status – for its own sake – of gays, lesbians, and their families,” Massachusetts Attorney General Martha Coakley wrote in a friend of the court brief, joined by her New York counterpart, Eric T. Schneiderman. “Under any standard of Equal Protection analysis, it cannot survive review.”
But supporters of the ban argue that in passing Proposition 8, California voters made a rational decision to keep marriage special – and straight.
“Given both the unique capacity for reproduction and unique value of homes with a mother and father, it is reasonable for a state to treat the union of one man and one woman as having a public value that is absent from other intimate interpersonal relationships,” lawyers for the U.S. Conference of Catholic Bishops argued in asking the court to allow California’s gay marriage ban to be reinstated.
Will the justices do that?
It’s possible, but it is only one of a number of options.
They also could punt, ruling that the conservative backers of Proposition 8 who are bringing the case don’t have the legal standing to do so.
It’s also possible that they will issue a narrow decision that applies just to California, which is exactly what the appellate court did, ruling that “the people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
Then again, the justices could use the case to issue a sweeping ruling that gives gay people the right to marry in all 50 states.
That would be a far broader ruling than anything the court could issue in U.S. v. Windsor, the case it will hear Wednesday.
In that case, the court will consider whether to uphold a lower-court ruling that the Defense of Marriage Act violates the Fifth Amendment’s clause guaranteeing U.S. citizens “due process of law” – which courts long ago defined as a federal-level guarantee of equal protection.
The equal-protection violation is obvious, Schneiderman argues in a brief on behalf of New York and several other states.
“The only coherent aim served by DOMA is to stigmatize married same-sex couples by codifying disapproval for all past or future state decisions to sanction same-sex marriage,” he wrote.
But the Catholic bishops and others argue that the Constitution’s equal-protection provisions apply to groups of people who are defined by their very being – such as racial minorities – rather than groups defined by their behavior.
Protecting groups based on their behavior could lead to unwanted legal outcomes, the bishops warn.
“One can substitute ‘polygamists’ for ‘homosexuals’ as that term is used in the Windsor opinion and arrive at the same conclusion” – and thereby establish protective rights for polygamists, the bishops’ lawyers said in their friend of the court brief.
Yet that argument seems far afield from the ones being made on both sides in Buffalo.
A bizarre situation
Local attorney Shari Jo Reich hopes the court ends the bizarre legal situation that finds her and her wife married in New York and a handful of other states but single everywhere else.
As a result, she and her wife must fill out multiple tax returns: They file as singles on the federal level, but then must fill out a dummy federal return as a married couple so that those figures can be used to calculate their New York State tax rate.
Gay couples face such discrimination on hundreds of federal benefits, she pointed out.
“There’s no question on the equal protection issue,” Reich said.
But local attorney Roland Cercone said he doesn’t think courts or governments should be tampering with God’s definition of marriage.
He said the marriage issue could be solved simply by allowing people to name beneficiaries for the benefits that now automatically confer to those who are married.
“You don’t need to redefine marriage to do that,” he said.