Thursday, December 13, 2012

Homosexuality and the Supreme Court

The Supreme Court granted writ of certiorari to United States v. Windsor, a case regarding homosexuality, last Friday. Before discussing this case I will discuss two past Supreme Court decisions regarding homosexuality, since the Supreme Court takes into account last decisions when making current ones, a fact known as stare decisis. These two cases will be the the 1986 case of Bowers v. Hardwick and the 2003 decision of Lawrence and Garner v Texas as well as the Defense of Marriage Act passed by Congress in 1996. Following these past legal actions, I will state Windsor's argument and the argument against her and conclude with the likely decision of the Supreme Court and my own opinions.
     Bowers v. Hardwick started when police went to arrest Michael Hardwick in 1982 on the charges of not paying a fine for drinking in public. Upon entering the home, the police found him engaged in sex with another man and arrested him with the crime of sodomy (which was illegal at the time).
The Supreme Court ruled against Hardwick 5-4 when he sued based on the constitutionality of the law against sodomy. The Supreme Court stated that the Constitution did not protect homosexual relations and that only heterosexuals are given the personal autonomy to decide who to marry and have sex with (the words "segregation" and "oppression" come to mind here).
     The second case, Lawrence and Garner v. Texas, aroused the question: may the majority use the power of justice and law to force its beliefs on society? The answer, according to six of the judges, was no, there's a reason the United States is a pluralist democracy and not a majortsrian democracy. In other words, the founding fathers intentionally wrote a constitution that would protect minorities from the majorities view. This decision overturned Bowers v. Hardwick and declared that government had no right to interfere with a persons private sex life.
     The Defense of Marriage Act (DOMA) was passed by the United States Congress and signed by President Clinton in 1996. DOMA dictates that states need not recognize any legal marriages or unions of same-sex members from other states. It also.defines "marriage" as a legal union between a man and a woman and "spouse" as a legal partner in marriage of the opposite sex for all federal actions.
     Mrs. Spyer is a lesbian woman living in New York whose spouse died in 2007. Upon her spouses death, she received all of her property, but the IRS taxed her upwards of $363,000 on the transfered property. The IRS typically does not tax belongs passed on to a spouse upon death. However the IRS, following DOMA, denied this tax exemption to Mrs. Spyer on the basis that her female spouse is not a legitimate spouse. Mrs. Spyer then sued the United States claiming that Section 3 of DOMA (definition of marriage and spouse) is unconstitutional as it conflicts with the Fifth Admendment statement: "no person...shall be deprived of life, liberty, or property without due process of law.". She is hereby claiming that DOMA restricts her freedom to be married to a same sex partner and that her property (money) was taken from her without due process of law.
     The United States is the defendent, they are to attempt and defend DOMA's constitutionality. BLAG (the Bipartisan Legal Advisory Group) has been attempting to defend DOMA as well by stating that Mrs. Spyer's marriage was never recognized by New York and therefore has no basis on which to sue as she never had a spouse in the first place, let alone a same-sex spouse. The United States actually petitioned for the writ of certiorari, which the Solictor General himself wrote on behalf of the President Barak Obama. President Barak Obama and his Solicitor General both desire Windsor (Mrs. Spyer's attorney, that's why the case isn't United States v. Spyer) to reign victorious.
     Since the most recent Supreme Court case favors homosexuality, and with the mindset that the majority cannot force its will on the minority, the Supreme Court is likely to favor Windsor. In addition, since the President and the Solicitor General desire Windsor to win, her chances are increases (the President has next to no influence over any Supreme Court Justice, but the Solicitor General only backs claims with a very high chance of victory in favor with the President's views. Therefore, since the Solicitor General backed the case, it is very likely to succeed on behalf of the President). Finally, the defendant is trying to win based in a technicality and has no legitimate consitutional backing. In fact, there's no legitimate consiturional argument against Windsor I could find in all my research. I restate that the Supreme Court is very likely to vote in favor of Windsor, declaring DOMA unconsitutional and forcing all federal rulings, dealings, and policies to recognize same-sex marriages. In addition, it may force states to recognize same-sex marriage certificates from other states (as Article II of the Constitution declares the states must do anyway, why DOMA hasn't been challenged on this blatant violiation of the Constitution before will forever perplex me). However, it will most likely not force states to allow same-sex marriages in their own jurisdiction. This case will not fix the issue of oppression against gay and lesbian marriages, but it is a major step forward.
     Now for my views concerning the Constitution and same-sex marriages and rights (beyond the arguments of Windsor, with whom I fully agree): The Ninth Amendment of the United States Constitution protects against the fear of several founding fathers; the fear that by specifically listing certain rights in the Bill of Rights, that various people and powers will claim that you have only those rights and none other, because if you did have any other rights they would have also been listed. The Ninth Amendment states that the Bill of Rights can't be used for that purpose. One of these rights is the Right to Privacy; If your private decisions and actions do not harm others, than the government has no right to intervene. Your private life is your private life. In this specific case, the government has no right to say who you can or can't have sex with. It's your decision, and so long as the partner consents, there is no harm done. As the 2003 overruling majority opinion stated (this is the gist of the quite, not the actual quote), "Is it right to enforce the majority's OPINION through criminal law?" Just because the majority wants something does not make it right. Whether you agree with a decision or not, that person's decision is their decision and not yours. In addition, the Fourteenth Amendment guarantees the right to equal protection under law. Homosexual couples (before the 2003 decision) could not perform sexual practices legally, even the ones that heterosexual couples were allowed to engage in (yes, some states prohibited certain sexual practices to heterosexual couples as well). This discrimination against homosexuals is a clear violation of the Fourteenth Amendment as equal protection under law is not guaranteed to homosexuals. Also, the Defense of Marriage Act passed by Congress in 1996, which has not yet been declared unconstitutional, claims that a marriage is between a man and a woman and that states need not recognize same-sex marriage licences from other states (the Constitution explicitly states that states must recognize licenses of other states as valid). The DOMA discriminates against homosexuals and denies them the Constitutional rights of Privacy and Equal Protection under Law. In conclusion, there is no basis for depriving homosexuals of marriage or rights, and legislation against homosexuality is blatant, unconstitutional discrimination.

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