by Rebecca Glenberg, Legal Director
This Tuesday and Wednesday, the Supreme Court will be hearing arguments in two major cases about marriage equality.  The impact on the lives of lesbian and gay Virginians could be huge—or not.
On Tuesday, the Court will hear Hollingsworth v. Perry, a challenge to a prohibition on same-sex marriages.  In May 2008, the Supreme Court of California ruled that, under the California constitution, gay couples must be afforded the same right to marry as heterosexual couples.  Over the next several months, thousands of gay couples got married in California.  But in November 2008, California voters approved Proposition 8, which amended the state constitution to define marriage as a union between a man and a woman.  The Hollingsworth case,  is a constitutional challenge to Proposition 8.
The Prop 8 case, as Hollingsworth is known, gives the Supreme Court an excellent opportunity to rule that civil, government-recognized marriage is a fundamental right, one that must be afforded to both gay and straight couples without discrimination.  Such a landmark decision would require all states, including Virginia, to allow same-sex couples to marry.
Unfortunately, most court-watchers do not expect the Supreme Court to issue such a broad ruling.  If the Court does strike down Proposition 8, it will likely do so in a narrower fashion.  For example, the Court could rule that having once granted gay couples the right to marry, the state could not then take the right away, since the only possible reason for doing so is animosity toward gay people, a discriminatory intent ruled unconstitutional by the Court in a Colorado case some time ago.  (That was the basis on which the Ninth Circuit Court of Appeals struck down Proposition 8.)  If the Court goes that route, it will only affect California.
Alternatively, the Court could hold that it is irrational for California to withhold marriage equality, when it already affords gay couples all of the substantive privileges and obligations of marriage through its laws allowing registration of domestic partnerships.   Again, the only reason not to allow gay couples to marry, when they are treated just like married couples for purposes of taxes, property, child custody, and so forth, is hostility toward gay people, which is constitutionally impermissible.  If the Court so ruled, it would affect the eight states that currently allow gay couples to enter into civil unions  or domestic partnerships that are functionally identical to marriage.  Alas, Virginia is not one of those states.
Of course, the Court could also rule that gay couples have no federally-protected constitutional right to marry whatsoever.  This would leave Virginia exactly where it is now, with a state constitutional and statutory ban on same-sex marriages.  In that case, it will be essential for all supporters of marriage equality to rededicate themselves to using the political process and public education to amend the state constitution and repeal the prohibitive laws.
On Wednesday, the Court will hear arguments in United States v. Edith Windsor, an ACLU case challenging a portion of the federal Defense of Marriage Act (DOMA).  The ACLU represents Edie Windsor, who was in a relationship with her wife, Thea Spyer, for forty-four years. After Thea was diagnosed with multiple sclerosis, Edie cared for her as her condition gradually deteriorated.  In 2007, the couple married in Canada.  Thea passed away in 2009.  She left her entire estate to the great love of her life, her wife Edie.
Usually when one spouse bequeaths property to the other, the property is exempt from federal estate taxes.  Under DOMA, however, the federal government is prohibited from recognizing a  legal same-sex marriage for any purpose.  Since the government cannot recognize Edie and Thea’s marriage, Edie ended up owing over $300,000 in estate taxes.
The ACLU lawsuit argues that the federal government must treat a legal, same-sex marriage exactly the same as any other legal marriage.  If the Supreme Court rules in our favor, Edie will not have to pay taxes on Thea’s estate.  And any legally married same-sex  couple, whether married in California (while marriage was legal), Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington or the District of Columbia or a jurisdiction yet to implement marriage equality will have their marriage count for all federal purposes, including taxation, federal employee health insurance, and Social Security or GI survivor benefits.
Thus, in Virginia, the DOMA ruling will allow federal benefits to flow to couples who got married in one of the jurisdictions that allow same-sex marriages.  Those marriages will be recognized by the federal government.  Unfortunately, such a ruling will not require Virginia to recognize any same-sex marriage, so legally married same-sex couples will continue to be denied all of the benefits of marriage in Virginia and to have their marriages considered void. Again, it will be up to all of us to continue to press for marriage equality in Virginia.