INFOGRAPHIC: The LGBT Undocumented

Last week was a watershed moment in the history of the LGBT Community.  You could not help but see the transitioning of facebook into a bright sea of red as everyone (or almost everyone) changed their profile into red tints, showing support for marriage equality.  What impressed me the most was the number of straight friends, including two of my ministers from my mainstream Methodist church, joined in the show of support.  After a standing room only Town Hall Meeting at the Center in which local leaders discussed the two cases before the Supreme Court, we now wait for a decision to come out in late June or first three days of July.  No one, including myself, knows how SCOTUS (Supreme Court of the United States) will rule, but I love placing odds on certain events, so I will attempt to break down the possibility of how SCOTUS will rule.  Again, this is at best a guess….. Would probably be more effective throwing darts at the choices.

PROPOSITION EIGHT (Prohibiting Same Sex Marriage in California)

Reversing lower courts’ decision and declaring Prop 8 as valid.   2 % chance of succeeding.  While 4 members of the Court are not what you consider gay friendly, the four progressive members and Justice Kennedy clearly revealed that they do not think Prop 8 is Constitutional.

Dismissal of case as improvidently granted.  25% chance of dismissal.  This is uncommon but not unheard of, and it means the Court decides it was wrong to have taken up this particular appeal and dismisses case without ruling on the merits.  This in essence would allow the Ninth Circuit Court’s decision to stand, which declared Prop 9 as unconstitutional, and allowing same sex marriage to resume in California.

Lack of Standing -  43% chance of denial of appeal.  Since no governmental official in California would support appealing the lower courts’ decision declaring Prop 8 as unconstitutional, supporters of the denial of same sex marriage were allowed to make the appeal themselves.  SCOTUS raised the issue several times during the hearing; giving the impression to some observers this could be a way out without having to issue a binding decision.  If the court rules there is a lack of standing, either one of two things could occur: 1. They would order the decision of the federal judge who first heard the case as binding, allowing same sex marriage to re-occur in California (good thing). Or 2. Issue a ruling that the lack of standing will make the lower court’s decision binding only on the four original plaintiffs, allowing these two couples to marry , but no one else (very bad thing).  Most likely they will issue that original federal court order declaring Prop 8 as unconstitutional for entire state of California.  Note: Such ruling would only affect CA and no other state.

Decision on the merits declaring Prop 8 as unconstitutional.  28% chance of occurring.   While there appear five votes to declare Prop 8 unconstitutional, they do not appear to be in agreement as the method to reach such decision.  Some justices appear ready to declare all state laws preventing same sex marriage as void, while other justices only want to address the state law in California.  Justice Kennedy, a Reagan appointee, appears ready to declare Prop 8 unconstitutional, but not ready to support a sweeping change across the nation.  He appears to be the fifth and deciding vote, so most likely the opponents of Prop 8 will have to accept his line of thought.

Decision to declare all prohibitions against same sex marriage as unconstitutional.  2% chance of success.  As this is the result that we all hope for, it does not appear that SCOTUS is ready to make such a drastic step.  Even the more progressive members of the Court seem hesitant to take such a major step.  I hope I am very wrong on this “guess” but would be shocked (and thrilled) if court issued such ruling.

DOMA CASE (Defense of Marriage Act) 

Only Section 3 of DOMA, which prohibits same sex married couples from accessing federal marital benefits (over 1100 benefits), is being considered for appeal purpose at this time.  Section 2, which allows states the right to refuse to accept the marital status of same sex couples, will have to be addressed in a follow up case, as I am sure it will.

Appeal will be dismissed for lack of standing -25% chance of dismissal.  Because the President of the United States and the Attorney General refused to defend DOMA because it appears to them to be unconstitutional, five leaders of Congress called the Bipartisan Legal Advisory Group (BLAG) elected to appeal the lower court’s decision declaring DOMA as unconstitutional.  (Bipartisan my ass…. 3 Republicans including Speaker Boehner voted to appeal against 2 Democrat votes).  There is some question as to whether BLAG actually has a right to make decision to appeal an issue reserved for the Executive Branch.  While valid argument, SCOTUS appears ready to vote on this issue. And if dismissed, the lower court’s decision declaring Section 3 as unconstitutional would be upheld though may cause confusion for the remaining 8 states as to federal rights.

Section 3 of DOMA will be declared unconstitutional on the merits. 75% chance of occurring.  The questioning by the progressive members of SCOTUS along with Justice Kennedy gave the appearance that DOMA clearly made same sex couples suffer monetary loss (in this case- force to pay Estate Taxes) and thus a violation of equal protection.  Even Chief Justice Roberts was open to the argument that DOMA was an unconstitutional intrusion into areas usually reserved for states.  This could be a 6-3 or even 7-2 vote to invalidate DOMA.

SCOTUS reverses lower courts’ ruling and uphold DOMA – 0% chance of succeeding.  This will be the first of several cases dismantling DOMA.

There is an interesting side note to the DOMA case.  If Section 3 is struck down, Federal benefits will be available to those couples who are legally married in the 9 states and District of Columbia (and soon to be joined by California).  If a couple who is receiving such benefits move and are domiciled in a state that does not recognize same sex marriage, those rights may be withdrawn.  There is no definitive answer to this question, but one that must be considered.  Also, if DOMA is struck down, will there be a gay migration to those states that recognize same sex marriage?  It’s not just a watershed moment….it’s a Tsunami.

Buckle your seatbelts….. I think it’s going to be a FUN ride.

Randy Stephens
Executive Director
The Center Orlando