Today is the one year anniversary of the Windsor and Prop 8 decisions from the US Supreme Court, as well as the 11 year anniversary of the Lawrence v. Texas case.
And they were all very close calls, a fact that’s easy to forget now, looking back.
Keen News Service reports:
Kennedy’s words in both Lawrence and Windsor have been repeated in numerous court decisions since. And the powerful influence of words and decisions has almost obscured the fact that they were narrow victories.
In Lawrence, Kennedy wrote for just five of the six justices who considered sodomy laws to be unconstitutional; while Justice Sandra Day O’Connor provided a sixth vote in concurrence with the judgment, she did not join Kennedy’s opinion to the extent that it overruled the 1986 decision in Bowers v. Hardwick (which had upheld state sodomy laws). O’Connor said she would simply strike Texas’ law on equal protection grounds. (“Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”)
In Windsor, Kennedy wrote for just five justices. One of those five, Elena Kagan, had been on the bench for only two and a half years and apparently had to recuse herself from a similar DOMA challenge that had reached the high court sooner because she likely discussed it while serving as Solicitor General. If the court had taken that first case, Gill v. Office of Personnel Management, the court likely would have rendered a tie vote and DOMA would still be in effect in most states.
Over at Time, Stuart Armstrong II looks at the impact the DOMA ruling had on LGBT finances:
The Supreme Court’s ruling last year on the Defense of Marriage Act has had a momentous impact on financial planning for lesbian, gay, bisexual, and transgender couples. But the momentous impact has little to do with the case at issue. The focus of the landmark case, United States v. Windsor, was an estate tax issue. Given that it takes millions of dollars in assets to trigger federal estate taxes, hardly any Americans are subject to them. Yet the decision allowing for federal recognition of same-sex marriages has a major influence on the day-to-day financial lives of LGBT couples — not just the high-net-worth ones — affecting everything from income taxes to Social Security benefits.
And James Esseks at The Advocate looks at Windsor’s other effects:
…with a year’s hindsight, it’s clear that Windsor signaled more than just the end of DOMA, it also propelled us on an accelerated journey toward the freedom to marry nationwide.
In just the last year, Windsor has helped create incredible momentum for the freedom to marry:
- We’ve won six new marriage states since June 2013, bringing us to 19 states plus Washington, D.C., where gay couples can marry.
- Now 44 percent of the country lives in a freedom-to-marry state, up from 18 percent just a year ago.
- Polls show a clear majority nationwide supports marriage for same-sex couples.
- We’ve won 21 court rulings for marriage since Windsor, including two just yesterday (one from a federal appeals court covering Utah and another from a federal trial court in Indiana), and we’ve lost an incredible record on a “culture war” issue in the courts.
- There are now over 80 marriage equality cases pending in state and federal courts across the country, including in every state that doesn’t allow same-sex couples to marry and in seven federal appeals courts.
So happy birthday, US vs. Windsor – and we hope we’ll have a lot more to celebrate when you turn two.