Supreme Court takes on same-sex marriage

By Kelsey Hughes/For The Diamondback
Photos by Kelsey Hughes/For The Diamondback

With Supreme Court hearing two cases, students rally, protest in front of courthouse

By Jenny Hottle and Alex Kirshner, senior staff writers
March 28, 2013
Originally posted on

As a crowd gathered in front of the U.S. Supreme Court steps Tuesday morning, Ryan Heisinger couldn’t help but feel like part of history in the making.

For each protester holding a poster declaring, “Kids do best with a mom & a dad,” another three or four waved rainbow flags and held signs proudly proclaiming themselves as advocates of marriage equality. A man wearing a red baseball cap and scarf, Thos Shipley, showed off a new engagement ring — his partner proposed last week in Times Square, Shipley explained to nearby ralliers.

It was exhilarating to watch the morning unfold, said Heisinger, the Student Government Association academic affairs vice president.

“All different backgrounds of people are rallying around this cause — it’s really inspiring,” he said. “Maybe one day in our kids’ textbooks, there will be pictures of this rally.”

The senior English and history major was among the thousands of advocates — some of them students from this university — who rallied for same-sex marriage as the Supreme Court takes up two cases on the matter this week. Several hundred people also took to the streets in support of the two laws up for debate: California’s Proposition 8, which passed in 2008 and banned same-sex marriage in that state, and the Defense of Marriage Act, which federally defines marriage as being between a man and a woman.

The clash of ideologies was reflected inside the courtroom Tuesday and Wednesday as Supreme Court justices heard oral arguments over both cases and expressed strongly divided views on how they should rule. Some, such as Chief Justice John Roberts and Justice Antonin Scalia, remained steadfastly supportive of allowing states to dictate the legality of same-sex marriage, while others, such as Justice Sonia Sotomayor, suggested the time may not have been right to hear a case on Proposition 8 at all, according to several news reports. Meanwhile, several justices, like Anthony Kennedy, seemed to lean toward enforcing marriage equality.

This state became the first in the nation to affirm same-sex marriage by referendum on the state ballot in November. In the election, 73 percent of people who voted on the campus supported same-sex marriage on the state level. Now, supporters and protesters alike are keeping a close eye on the court as the justices hear arguments on the two cases.

“The bottom line is both legal and moral civil rights,” said Del. Bonnie Cullison (D-Montgomery). “In this country, we grant rights to our citizens that are defined in our laws, defined in our Constitution, defined in our Declaration of Independence.”

Politically speaking, the past month has been a momentous one for same-sex marriage.

Rob Portman, an Ohio Republican senator who had been publicly against it his entire life, announced his support for marriage equality after his son came out. Former Secretary of State Hillary Clinton followed suit days later in an online video release, with a slew of Democratic senators echoing their support afterwards.

“We’re at a point where we’ve crossed a line, so to speak,” said Luke Jensen, director of the university’s Lesbian, Gay, Bisexual and Transgender Equity Center. “The number of people who are below the age of 30 who support the availability of marriage for same-sex couples is overwhelming.”

Fifty-eight percent of Americans support the right to same-sex marriage, while 36 percent oppose it, according to a Washington Post-ABC News poll released last week. A decade ago, The Post noted, those numbers were nearly flipped exactly. Among younger Americans, the favorability rating was even higher.

“My inclination is to say that [now] is a turning point, and I think the turning point was actually the fact that it was on the ballot and passed in the ballot in three states,” Cullison said. Last November, Maine and Washington state also upheld referendums on the issue, and Minnesota rejected a constitutional ban on same-sex marriages.

Maryland has come to accept same-sex marriage sooner and more broadly than most states, advocates said, though it is not quite at the cutting edge of acceptance.

“It took Maryland a while to get to this point,” Cullison said. “Marriage equality has been heard in the Statehouse at various times over the last decade, and we just got it in 2013, so I wouldn’t call us standing out front. But I also believe that we were taking steps in the right direction in those 10 years.”

Cullison, who is one of eight openly LGBT members of the state’s General Assembly, said same-sex marriage has become a topic of broad importance in the state, far exceeding only gay and lesbian circles.

“It’s not just personal. It is about the bigger picture, the philosophies and the rights,” she said. “My straight allies were some of the most impressive speakers on the floor during the marriage equality debate, and I know they are speaking from the heart.”

But while many allies of the LGBT community have been switching their Facebook profile pictures in support of marriage equality this week, some students at this university said they are sticking to faith-driven beliefs that the definition of marriage should remain — or return to — a union between a man and a woman.

Based on social media debates, David Burkey said he recognizes he holds an unpopular opinion on the campus by opposing same-sex marriage.

“People who share my opinion are often seen as bigoted,” the junior accounting and marketing major said. “I have friends who are gay — they’re great. I have nothing against the gay community.”

Still, Burkey said he views marriage as fundamental in its meaning as being defined between a man and a woman, and should stay that way because “it’s best, maybe, for society.”

The case against Proposition 8 is “infuriating,” said Jimmy Williams, a sophomore journalism major.

“Twice was the issue of gay marriage put to the voters of California, without a doubt the most liberal voting bloc besides maybe New York state, and twice was gay marriage shot down,” he said. “If the Supreme Court strikes down what the voters in California have already voted for twice, then what’s the point of the ballot anymore?”

Supporters of same-sex marriage said there were legal and moral reasons the High Court should strike down both Proposition 8 and the Defense of Marriage Act, though predicting the outcome is difficult.

“The cases are different. The cases have different merits,” said Sharon Brackett, board chair of Gender Rights Maryland. “My crystal ball’s as hazy as anyone else’s. I’m optimistic, but I’m also realistic. I really have no idea what course they’re going to take.”

As oral arguments concluded on Wednesday, the most prevalent opinions were that the court would be skeptical to pass judgment on Proposition 8 and that it would likely strike down the Defense of Marriage Act, though those predictions are far from certain.

Heisinger said he hopes for a sweeping ruling that same-sex marriage is constitutional and legal across the United States, but noted commentary and analysis of the oral arguments shows the justices are still on the fence.

“I assume the court will rule narrowly — the ruling will probably just apply to California and not to the U.S.,” Heisinger said.

The justices could take a number of different paths in rendering verdicts on both cases, which are said to be due around June. They could strike down or uphold the laws, declaring marriage discrimination outrightly constitutional or unconstitutional. In Proposition 8’s case, the issue could be left to California to decide, with no constitutional assessment made.

Cullison anticipated the Court “might take the moderate road and not make sweeping statements.”

Regardless of the results in Washington, Jensen said long-term social changes of heart on the issue are inevitable.

“The tide is coming. The wave is already passed, or we’re in that first wave,” Jensen said, “and it’s going to reach all the states.”

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