A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
For Brit tweeters, SCOTUS sounds like some other mystery character from the West Wing (POTUS has had a bike accident, SCOTUS was riding on the back). The explosion of tweets on Friday made clear firstly that it stood for Supreme Court of the Untied States, and secondly that something ground-breaking may be about to happen.
Certainly the political shows over the weekend whipped themselves into a frenzy. I was struck when Meet the Press discussed this as a potential Roe v Wade watershed (the case which legalised abortion). Others have made the comparison to Brown v Board of Education (the landmark race case).
The news is (if you’ve been living on the moon) is that the US Supreme Court has agreed to hear two cases – of critical importance for those interested in law and sexuality. One addresses the Defense of Marriage Act (DOMA) and other addressing Proposition 8. Put simply, DOMA is a federal law (originally backed by Obama, now rejected) which means that even if individual States allow same-sex marriage, those marriages are not recognised at a federal level.
Proposition 8 was essentially a referendum back in 2008 (the same year Obama was elected to his first term) in the State of California. California had same-sex marriage but Prop 8 defined marriage in the constitution as being between a man and woman. In doing so, it rendered same-sex marriages unconstitutional and thus verboten. As such, the legal challenge to Prop 8 has taken on the air of the black civil rights cases that have gone before.
I’ve been lucky in recent years to make it over to the States for the LGBT Bar Association Annual Conference, enabling me to meet with, and hear from, lawyers, judges, jurists and state and federal officials. Over several intense days, I could get a feel for the currents sweeping through the US legal world, but I wasn’t able to get over this year, and it’s only now that I realise how out of touch I am as a result. I’m left with digesting the US media and going with my gut – but it’s not the same.
My hunch is that the DOMA case will succeed. By which I mean, DOMA will be overturned. Even those who are hardly gay rights activists will – I’m guessing – be swayed by the power of individual States arguments (but it’s far from a given).
When it comes to Perry, the proposition 8 case, I confess I have no idea. I’m less optimistic it will succeed but that could well just be my default pessimism.
Anyway, for following every twist and turn in what will be landmark and gripping legal history, check out the brilliant Prop 8 trial tracker website. I’ve recommended it before and it remains a wonderful resource. Check it out here.