WASHINGTON – The U.S. Supreme Court is days away from issuing decisions on two important same-sex marriage cases, which supporters of marriage equality hope will pave the way for a nationwide ruling.
Sen. Kirsten Gillibrand (D-N.Y.) said she was optimistic that the federal Defense of Marriage Act (DOMA) will be repealed by the end of the year.
“I’m actually quite optimistic we can build the support we need over the next several months,” said Gillibrand at a forum hosted Tuesday by Third Way, a professed centrist think-tank in Washington, D.C.
The Supreme Court is weighing two laws on marriage rights – DOMA and California’s ban on same-sex marriage. The first case, United States v. Windsor, challenges the constitutionality of DOMA – a federal law that defines marriage for all federal purposes as a legal union between a man and a woman.
The second case, Hollingsworth v. Perry, brings California’s Proposition 8 – a ballot measure overturning the California Supreme Court’s ruling that determined same-sex couples have a constitutional right to marry – before the Supreme Court.
Legal analysts widely expect the Supreme Court to strike down DOMA, but most likely as a federal overreach rather than as a violation of gay couples’ fundamental rights.
Gillibrand told the audience that she plans to push for a legislative repeal of DOMA regardless of the court’s decision. The court will rule only on Section 3, which bans federal recognition of same-sex marriage, but not section 2, which allows a state to refuse to recognize a same-sex marriage from another state.
She also asserted that any amendments coming out of the U.S. House of Representatives putting same-sex marriage in jeopardy would face stiff opposition.
Speaking about the role of Senate Republicans for the legislation, Gillibrand said the support of Sens. Mark Kirk (Ill.) and Rob Portman (Ohio) has been helpful, and she hopes to recruit Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), who have come out in the past in support of LGBT rights. Murkowski announced Wednesday morning that she supports legalizing same-sex marriage, becoming the third Republican senator openly endorsing the issue.
“We are very close to the 60 votes we need,” Gillibrand said, “closer than most people think.”
David Boies, co-counsel in the Hollingsworth vs. Perry case, said the Supreme Court could decide in several ways in favor of same-sex marriage supporters in the Proposition 8 trial. The court could affirm the lower-court rulings that held Proposition 8 unconstitutional by focusing on aspects that are peculiar to California.
“The Federal Court of Appeals in California agreed with us that Proposition 8 was unconstitutional, but they did so without reaching the broad equal protection and due process arguments that we made in the district court. What the Ninth Circuit Court of Appeals said is that once you grant rights to people you can’t take those rights away without due process,” Boies said.